It turns out 100% of the wrath directed at the NSA over its surveillance practices has not occurred in 2013. Major outlets are reporting that the agency was taken to task by the chief judge on the Foreign Intelligence Surveillance Court in 2011 for time and again misleading the court—and violating the Constitution, reports the Wall Street Journal. In the secret ruling made public yesterday thanks to a FOIA lawsuit brought a year ago, Judge John D. Bates described the court as "troubled that the ... NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program," per the New York Times.
NSA officials had apparently realized that in their scanning of foreign-related emails they had also swooped up "wholly domestic" messages—over the course of some three years. (The Washington Post puts the number at roughly 56,000 emails each year.) Officials speaking with the Post emphasized that the NSA made the court aware of the issue by way of its regular reports in May 2011; Bates noted, however, this revelation came years after the NSA was in 2008 given the authority to process international Internet data running through fiber-optic cables in the US (this represents about 9% of what it collects each year). The ruling says the NSA's so-called "upstream collection" was "in some respects, deficient on statutory and constitutional grounds." The NSA worked with the court to fix the problem.