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Focus on facts, not fear, in a public NSA debate

by Walter Pincus

The Washington Post

Let’s have a meaningful public debate on the controversial National Security Agency programs that collect and store electronic communications data and content. They certainly have been the center of attention since former NSA contractor Edward Snowden disclosed related documents in June. But let’s deal with facts about the programs as they operate, not only with the potential dangers they may pose.

That’s not how it’s gone so far.

Take the debate last week in the House of Representatives before votes on NSA programs.

Note that I said votes. There were two, though only one — to end funding of the massive collection of Americans’ phone toll records — seems to have drawn media attention, and thus the public’s eye.

One misperception emerging from Snowden’s disclosures is the result of mixing two NSA collections programs. Many have been led to believe that the contents of every American’s phone calls, e-mails, video clips and Skype chats are being stored somewhere by the government, where NSA employees can review them at will.

The House debate did little to clear that up.

One NSA program, known as 702 for its section in the Foreign Intelligence Surveillance Act — as amended in 2012 — permits the NSA to gather electronic communications such as e-mails and phone conversations. But that’s only after approval by a federal judge serving on the Foreign Intelligence Surveillance Court (FISC) that the NSA’s target is not a U.S. citizen or someone in the United States and that there is an appropriate, documented foreign intelligence purpose for the collection, such as terrorism or nonproliferation.

When 702 collection is pertinent to foreign intelligence but inadvertently involves a U.S. citizen or reference to an American, the identity of that person is deleted from any report. That is, unless the name is pertinent to the inquiry.

If there is no foreign intelligence relevance, the communication is destroyed.

An NSA official told the House Judiciary Committee on July 17 that more than 90 percent of some 50 terrorist disruptions came from 702 information.

The second program, known for its section in the law as 215, permits the bulk gathering of business records if there are “reasonable grounds to believe” the records are relevant to a terrorist probe, though it’s understood most of the data collected are not associated with such activity.

Under rules set by the FISC, the NSA uses 215 to obtain company billing records for all U.S. phones. Those records show numbers called, calls received and the lengths of the conversations. The NSA stores those millions of phone toll records for five years. That phone metadata can only be searched by a small number of authorized NSA analysts — about 20 — and only for records associated with a U.S.-based phone number that was called from an overseas phone, the latter previously identified with a specific foreign terrorist.

If they find a questionable pattern on the U.S. side, such as calls to other suspect phones, a report goes to the FBI for further investigation. As part of oversight, reports are filed with the FISC every 30 days on numbers selected for analysis, and if any reports have been sent to the FBI.

NSA officials report to the FISC any violations of orders, but they have repeatedly said that though there have been technical issues, there has not been any abuse that requires disciplinary action in either the 702 or 215 programs.

These are complex subjects, but last week the House allocated all of 15 minutes for debate on the two NSA amendments, 7½ minutes each for those in support or opposed.

Reps. Justin Amash, a Michigan Republican, and John Conyers Jr., a Michigan Democrat, introduced an amendment to the fiscal 2014 defense appropriations bill to strike all funding for the 215 program.

Before it came up, however, the House debated the other NSA amendment. Brought forward by two lesser-known House members, Reps. Richard B. Nugent, a Florida Republican, and Mike Pompeo, a Kansas Republican, the measure made illegal the targeting of Americans under 702 or collecting phone conversations under 215.

Pompeo said one of his purposes was to make clear under 215 that “no record of the actual conversation or the contents thereof may be recorded or collected by the National Security Agency.”

Rep. Jerrold Nadler, a New York Democrat, who voted for the Pompeo measure as well as the defunding of 215, used much of his 90 seconds to say the collected phone metadata “reveals highly personal and sensitive information including, for example, when and how often one calls the doctor, a journalist, or the local tea party or ACLU affiliate.”

He said, “By tracing the pattern of calls, the government can paint a detailed picture of anyone’s personal, professional and political associations and activities.”

Nadler said, “Congress never authorized this type of unchecked, sweeping surveillance of our citizens,” and he was correct.

But that’s not going on, at least not by NSA analysts, under the 215 program.

Left unexplored was who was authorized to search NSA 702 archives, where content is also held for five years. When Snowden and others have talked of NSA employees being able to call up conversations, are they talking about 702 archives?

Another example of how last week’s debate didn’t help clear up misperceptions: Amash began his few minutes saying in part that opponents “will tell you there is no expectation of privacy in documents that are stored with a third party. Tell that to the American people. Tell that to our constituents back home.”

Amash didn’t say that is the law — upheld by the Supreme Court in a 1979 opinion. The court said a U.S. phone owner has no expectation of privacy for his or her phone toll records, which the companies maintain for billing and other purposes.

The House intelligence chairman, Rep. Mike Rogers, a Michigan Republican, used his time to defend the 215 program. Still, he pledged that this fall he “would work to find additional privacy protections with this program” to attach to the fiscal 2014 intelligence authorization bill.

He said 702 and 215 had 54 times “stopped and thwarted terrorist attacks both here and in Europe — saving real lives. This isn’t a game. This is real. … This is hard.”

The Pompeo amendment passed 409 to 2. We all know Amash-Conyers failed, 217 to 205.

Walter Pincus reports on intelligence, defense and foreign policy for The Washingon Post and writes the Fine Print column.

  • Bialzibozo

    What rubbish you write Pincus.

    Only 20 people can access the phone records? Care to provide ANY evidence? Did the NSA tell you this ‘fact’? You are a cheerleader for the US apparatus and this piece will sit on the internet and rightly condemn anything else you ever write, as an indication of your dis-honest and skewed position.

    Let me clarify a few points for you; PRISM and the program created for the collection of phone meta-data by the NSA are illegal.

    On top of that James Clapper (Director of National
    Intelligence) even lied to the Senate when questioned by Republican Senator Ron Wyden (http://www.guardian.co.uk/world/video/2013/jun/07/privacy-wyden-clapper-nsa-video) (note that the question was provided one day in advance to Clapper, was asked twice on the day of the hearing and the answer double checked with Clappers office the day following the hearing) and Clapper has since practically admitted to lying
    (http://blogs.wsj.com/washwire/2013/07/02/in-letter-clapper-apologizes-for-erroneous-response/ , on NBC and most recently in a letter
    addressed to the Senate which received a very frosty reception by Senator Wyden and others).

    An excellent opinion piece that I cannot recommend enough in
    The New York Times (http://www.nytimes.com/2013/06/28/opinion/the-criminal-nsa.html?pagewanted=all&_r=0) covers PRISM and the phone meta-data collection and clarifies the following:

    The NSA claims that section 215 of the Patriot Act allows
    the collection of phone meta-data. However the act states that information can
    be collected on things that are relevant and pertinent to an on-going
    investigation. The whole-sale collection of the phone meta-data of millions of
    Americans is neither linked to nor relevant towards any actual investigation.
    One of the authors of the Patriot Act (Jim Sensenbrenner) has questioned how every call that every American makes or receives could be relevant to a specific investigation (http://sensenbrenner.house.gov/news/documentsingle.aspx?DocumentID=337001). It clearly cannot therefore this program is illegal.

    As for PRISM, one of the chief requirements of the act being
    used to allow for the existence of the program (FISA amendments act, 2008,
    section 1881a) is that information on American citizens must not be collected.
    The NSA has said that PRISM is designed to ensure that at least 51% of the
    information collected can be confidently said not to originate from Americans.
    Therefore the NSA acknowledges that 49% of the time the collection of
    information under PRISM is illegal.

    Finally these programs clearly breach the 4th Amendment of
    the US Constitution, which states, “The right of the people to be secure in
    their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”.

    If you don’t think that by ‘papers’ the founding fathers meant it’s 21 century
    equivalent (phone and on-line comms as well as all manner of electronic
    tracking devices built into our entertainment, transportation and communication
    devices) then you are the worst type of apologist for the authoritarian
    police-state presently coming to life in Washington D.C. There is one word that
    describes those who help protect the NSA’s domestic spying program against
    American citizens in violation of the Constitution; That word is traitor.