WASHINGTON – 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.