The National Security Agency under former President Barack Obama conducted unlawful surveillance on American citizens from 2011 until the end of Obama's term.
According to a report by Circa, the NSA routinely monitored individuals who were suspected of aiding a foreign government while in the U.S., which falls directly under the agency's job description. It also monitored an undetermined number of Americans during this monitoring, and in doing so did not adhere to privacy guidelines.
Much of the intelligence collected by the NSA that is now in question was done via a FISA warrant, which allows the federal government to collect information on foreign threats to the U.S., according to National Review. And given the amount of data the NSA collects, it is inevitable some Americans will be inadvertently monitored.
The controversy lies in how the Obama administration then handled this information. Incidental information collected through a FISA warrant is subject to a "minimization" procedure, which involves masking the names of individuals listed in the report in an effort to protect their identities. The issue now is that the NSA did not provide adequate protection to Americans who were incidentally surveilled.
Under new internal guidelines placed on the Obama-era NSA, the agency was not to use identifiers like phone numbers or email addresses while running "upstream" searches, or searches retracing previously made queries. This guideline was routinely violated, but the scope of the NSA's violations has not yet been determined.
The NSA held a closed-door meeting to diagnose the oversights on Oct. 26, 2016, according to Circa. In it, the agency acknowledged the surveillance abuses and stopped all searches regarding upstream communications with identifiers, as well as deleting all information that was deemed to be discovered illegally.
"The Oct. 26, 2016 notice informed the court that NSA analysts had been conducting such queries in violation of that prohibition, with much greater frequency than had been previously disclosed to the Court," read unsealed court documents obtained by Circa.
The NSA has said it does not have the ability say it will never inadvertently collect data on law-abiding Americans, but pledged it would change practices to reduce the chances of collecting data on an American who has no connection to a foreign target.
"I think it does call into question all those defenses that we kept hearing, that we always have a robust oversight structure and we have a culture of adherence to privacy standards," said Neema Singh Guliani, the ACLU’s legislative counsel in Washington, D.C.