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NSA broke privacy rules because its phone data system was too 'complex'

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For a period of three years, the U.S. National Security Agency illegally searched a database of millions of phone records, in violation of rules put in place by the court created to oversee it.

Routine privacy violations took place between 2006 and 2009, according to top secret documents released Tuesday in response to Freedom of Information Act lawsuits by groups including the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union.

A judge with the Foreign Intelligence Surveillance Court finally put the brakes on the program in 2009, after NSA officials were unable to explain to the court how their own data collection and search procedures worked. 

“Incredibly, intelligence officials said today that no one at the NSA fully understood how its own surveillance system worked at the time so they could not adequately explain it to the court,” EFF activist Trevor Timm wrote.

Director of National Intelligence James Clapper defended the NSA in a blog post today, claiming the privacy violations were accidents caused by overly complicated software and rules. 

"The compliance incidents discussed in these documents stemmed in large part from the complexity of the technology employed in connection with the bulk telephony metadata collection program, interaction of that technology with other NSA systems, and a lack of a shared understanding among various NSA components about how certain aspects of the complex architecture supporting the program functioned," Clapper wrote.

Of the 17,835 phone numbers searched during that three-year period, only 1,935 met the requirement of reasonable suspicion set forth by the FISA court.

And there could be more disclosures yet to come about the NSA's privacy failures in collecting telephone metadata—the location, duration, and time of a phone call.. The EFF is still seeking the release of a 2006 FISA court opinion that gave an extremely broad definition of "relevant" communications. That's a huge loophole the NSA could have used to legally collect data on millions of Americans, despite prohibitions against domestic surveillance.

President Obama and NSA officials have maintained that programs like PRISM and telephone metadata collection only apply to persons “reasonably believed to be located outside the United States.”

Illustration by Jason Reed