Dianne Feinstein floats cutting NSA telephone metadata retention down from 5 years

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The chair of the Senate Intelligence Committee, Sen. Dianne Feinstein (D-Calif.), said July 31 she may seek to reduce the National Security Agency's retention of telephone metadata collected under Section 215 of the Patriot Act down to 2 or 3 years from the current 5 years.

Feinstein formed part of a Senate Judiciary Committee panel convened over NSA collection of all telephone transaction records made with domestic carriers in the United States, a previously secret effort made public in June by former intelligence community contractor Edward Snowden, who is applying for asylum in Russia while presumably still inside the international transit area of the Moscow Sheremetyevo airport. (Update Aug. 1, 9 a.m.: The New York Times reports Russia has granted Snowden temporary refugee status and he has left the airport for an unknown location.)

"It's my understanding that the usefulness [of the stored telephone metadata] trails off as the years go on. We have to determine that point, and then consider it," Feinstein said.

Another change could be to require the NSA to send to the Foreign Intelligence Surveillance Court records of each telephone number that intelligence analysts query the database with, so "the court can determine the propriety of the query under the law."

During the hearing, NSA Deputy Director John Inglis said the intelligence community's general experience is that the value of most intelligence tends to significantly decline after it's aged 5 years, "but there's a knee in the curve that might live 2 years or 3 years." He called for a data-driven retrospective for how long metadata records are "necessary, but beyond that, how long they're valuable."

In response to a question about whether telecommunications companies might store metadata records for NSA use rather than having the NSA itself store, Inglis said proposals for change should be scored against a number of criteria, including whether a new solution guarantees analysts the same breadth of records as they now have. They need to have confidence that a query looking for domestic recipients of a foreign telephone number known to be associated with a terrorist group is comprehensive, "to have confidence that if you come away with no response, that you can take that as confidence that there isn't a plot," Inglis said.

Database queries would also have to be answered instantaneously, Inglis said, adding that he believes telecom's "technical architecture is where they can" do that.

Almost since the metadata collection became public, intelligence officials have defended the FISC-approved interpretation of Section 215, which permits the intelligence community to obtain a court order for "tangible things" that are "relevant to an authorized investigation" meant to obtain foreign intelligence or protect against international terrorism. The officials have said all records are relevant to such investigations, because all records are necessary to trace the metadata path of terrorists or spies. Privacy of ordinary Americans is protected under the standard of "reasonable, articulable suspicion" that an analyst must articulate before being able to access the transactional record database, they've also said.

"The standard of relevant we're talking about here is not the kind of relevance that you think about in the Perry Mason sense, or in the criminal trial. It's a much broader standard of relevance," said Robert Litt, general counsel in the office of the director of national intelligence. A similar standard exists in grand jury subpoenas and civil discovery, he added, stating that "it's a well-accepted concept that if you need to get a large group of records in order to find a smaller group of records that actually provides the information that you need to move forward, that the larger group of records can be relevant."

An accurate estimate of what percentage of the metadata analysts have accessed is difficult to quantify, said James Cole, deputy attorney general, adding that he's heard estimates of .001 percent of the total.

For more:
- go to the hearing webpage (prepared testimony and archived webcast available)

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