(Source: Mary GrandPré, modifications Jason Mick/DailyTech LLC)
NSA lawyers argued in court that sometimes agents had to break the law due to technical limitations

Imagine if you had a job where you operated mostly independently and in an improvisational fashion.  Now imagine it was illegal for anyone who worked with you to disclose anything about your interaction.  Imagine if there was no way anyone would seemingly ever find out if you violated your workplace's rules or behaved unethically.  Would you play by those rules?  Or would you break them?

I. Above the Law?  NSA Agents Behave Illegally on a Regular Basis, Audit Says

The answer if you're the U.S. National Security Agency (NSA) is apparently "break them".

In the wake of a recent white paper in which the NSA argued it "did its best" not to spy on Americans, an internal audit leaked to The Washington Post indicates the NSA broke that promise not once or twice yearly, but thousands of times every year.  The May 2012 audit revealed NSA agents had abused their power to either accidentally or intentionally spy on Americans and green card holders 2,997 times in the last year.

Despite the fact that the government documents that give the NSA officials their sweeping powers -- Executive Order 12333 (President Ronald Reagan, 1981) and the Foreign Intelligence Surveillance Act of 1978 (FISA) (50 USC Chapter 36) -- strictly forbid them from spying on U.S. citizens, it appears that NSA agents violated that central premise, acting illegally on a regular basis.

NSA spying
The NSA argues it has to break the law sometimes to perform its duties.
[Image Source: Activist Post]

Violations ranged from simple carelessness -- for example, a typographical error that caused a U.S. citizen's phone records to be intercepted instead of a foreign suspect's -- to brazen violations of the law -- including the violation of a court order and willful unauthorized access to data from 3,000 Americans and green-card holders (potentially out of an agent's personal vendettas, etc.).

Another major violation was disclosed in an internal NSA newsletter, which revealed that the NSA was intercepting data from foreign web services passing through fiber-optic cables in the United States and diverting it to storage facilities.  Frequently, U.S. citizens who used these foreign services had their communications illegally collected.  

The NSA's lawyers defend these violations as "acceptable" to the Foreign Intelligence Surveillance Court -- the secret court that authorizes intelligence agency spying -- arguing that it was technologically infeasible not to spy on Americans.  The agency claimed it was unable to develop algorithms to accurately prevent it from illegally monitor Americans, so the best course of action was to break the law some of the time in order to perform its designated function some of the time.
NSA violations
NSA prefers the terms such as "unreasonable incident" or "operator error", rather than the term "illegal" to describe when NSA agents break the law on a regular basis and violate public trust.
[Image Source: The Washington Post]

The leaks are the latest embarrassment for the NSA, which recently admitted to monitoring 1.6 percent of global web traffic per day.  Of that, the NSA admitted to thoroughly inspecting nearly 77,000 gigabytes of data on a daily basis -- the equivalent of 7.7 billion emails a day, 2.5 million hours of 128 kbps mp3 audio, or 18,000 hours of 720p video [source: 123].

II. Senior NSA Official: Sure we Break the Law Sometimes, "We're a Human Agency"

Past audits of other government spying programs by other agencies have showed similar levels of rampant illegal behavior, so this problem is not only an NSA issue.

A senior NSA official is quoted anonymously by The Washington Post as defending this spotty track record, remarking:

We're a human-run agency operating in a complex environment with a number of different regulatory regimes, so at times we find ourselves on the wrong side of the line.  You can look at it as a percentage of our total activity that occurs each day.  You look at a number in absolute terms that looks big, and when you look at it in relative terms, it looks a little different.

The official preferred the term "unreasonable" to describe their agents' behavior when they violate the law, rather than referring to it as "illegal"

The NSA in 80s, 90s, and post 9/11-era operated largely under a complete shroud of secrecy.  With essentially no accountability, other than within the agency, it was virtually impossible to know whether agents were breaking the law or were performing their legal duties.

The chamber of secrets began to open in 2008 with the passage of the FISA Amendments Act.  While the act -- signed into law by then President George W. Bush greatly expanded the powers and scope of the NSA's spying mission in the name of fighting "terrorists", it also subjected the NSA to new yearly audits from the U.S. Department of Justice (DOJ) and the office of the Director of National Intelligence.  The act also required yearly reports to Congress on whether the NSA was playing by the rules.

Obama binoculars
President Obama granted the NSA new powers in 2008, in exchange for regular audtits.
[Image Source: Reuters]

However, if Congress was made aware of these violations they kept strictly confidential until whistleblower Edward Snowden blew the lid off the agency's nest of secrets, including slides that seemed to show the NSA was promoting illegal monitoring of Americans on a massive scale.

Mr. Snowden is currently facing criminal charges under the Espionage Act of 1917 (18 U.S.C. § 792) for revealing these possibly illegal actions by NSA agents.  The former NSA administrator has sought asylum in Russia while he works with U.S. and UK media to responsibly publish information on the NSA's alleged (and now perhaps confirmed) misbehavior.

NSA spying taxpayers
The NSA is at long last seeing its dirty laundry aired and being forced to answer to the people that are paying its bills -- the taxpayers. [Image Source: The People's Cube]

Following these publications, sources close to the NSA have felt compelled to for the first time leak some of those yearly audits, allowing the public a first glimpse at the agency's rampant history of violations and arguably illegal behavior.

Now the agency finds itself in an unfamiliar place of actually being held responsible for its chronic violations of the law. At last the people paying the bills -- the taxpayers -- finally have at least a modicum of information regarding the agency's violations of the public trust.  And that surely has many at the NSA feeling a little uneasy.

Sources: The Director of National Intelligence [leaked], The Washington Post [1], [2]

“Then they pop up and say ‘Hello, surprise! Give us your money or we will shut you down!' Screw them. Seriously, screw them. You can quote me on that.” -- Newegg Chief Legal Officer Lee Cheng referencing patent trolls

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