Intelligence community defends surveillance programs

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Intelligence community and Justice Department officials took to a rare open hearing of the House Intelligence Committee to defend surveillance programs, with National Security Agency head Gen. Keith Alexander stating that intercepted information has helped prevent more than 50 potential terrorist attacks across the globe since Sept. 11, 2001.

Ten of those, he said during the June 18 hearing, "included homeland-based threats." The committee called the hearing in the wake of revelations earlier this month that the NSA accumulates a vast database of domestic and international calls (but not their content) via secret court orders sent to American telephone carriers and collects the content of communications made through major American Internet companies, when the communications involve a foreigner located abroad suspected of involvement with terrorism or for foreign intelligence purposes.

The metadata collection relies on an aggressive interpretation of Section 215 of the Patriot Act, which permits the FBI to apply to the Foreign Intelligence Surveillance Court to compel entities to turn over "tangible things" when relevant to a terrorist investigation.

The federal officials testifying at the hearing said they wanted to correct "misconceptions" about the surveillance and received a mostly sympathetic reception from panel members.

The Section 215 metadata "is segregated from other datasets held by the NSA, and all queries against the database are documented and audited," said NSA Deputy Director Chris Inglis. Only 22 people have authorization to query the database and must have a "reasonable, articulable suspicion" before doing so, he added.

Those 22 people queried fewer than 22 numbers during calendar year 2012, Inglis also said.

During the hearing, Deputy Attorney General James Cole compared the metadata accumulation favorably to grand jury subpoenas, stating that prosecutors routinely issue subpoenas for similar data without having to obtain court approval, whereas Section 215 metadata requires the FISC to sign off on it.

The FISC does approve nearly every application put before it, but that doesn't mean it's a rubber stamp, said Robert Litt, general counsel within the Office of the Director of National Intelligence. The FISC judge approval stage comes at the end of a process under which the federal government first submits a preliminary application for review by court staff, Litt said. "And they will almost invariably come back with questions, concerns, problems that they see," he added.

"There's an iterative process back and forth between the government and FISA court to take care of those concerns, so that at the end of the day, we're confident that we're presenting something that the FISA court will approve. That is hardly a rubber stamp," Litt said.

Federal officials also reiterated the Third Party Doctrine, which holds that telephony metadata are business records not protected by the Fourth Amendment since they're voluntarily turned over to the carrier.

"People don't have a reasonable expectation of privacy in who they call and when they call. That's something that you show to the phone company, that's something you show to many, many people within the phone company on a regular basis," Cole said.

Third Party Doctrine has come under increasing criticism by privacy advocates who contend that metadata during an era of ubiquitous communications and powerful computers to analyze it should be better protected.

The content interception, which is authorized under Section 702 of the Foreign Intelligence Surveillance Act, as modified by the FISA Amendments Act, is subject to data minimization, officials said during the hearing.

 "Under the 702 program, the U.S. government does not unilaterally obtain information form servers of U.S. companies," Alexander said, likely referring to reporting that NSA has "direct access" to technology company data. The Washington Post, which used the term in an initial article, later said the term might be imprecise, stating that "in another classified report obtained by The Post, the arrangement is described as allowing 'collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations,' rather than directly to company servers.'"

Alexander said companies "are compelled to produce these records by U.S. law using methods that are in strict compliance with the law."

Litt said criticism that the intelligence community has too broad powers since it's able to collect content data of communications with foreigners suspected of terrorist involvement without an individualized court order is incorrect.

"Exactly the opposite is the case," he said, arguing that before the FISA Amendments Act, that kind of data collection "was done by the executive branch under its own authority without any kind of supervision whatsoever...It has not been brought under a judicial process," he added.

Litt also said the ODNI has "been working for some time on trying to declassify opinions of the FISA court," stating that no opinions have been released so far since once classified information from them is redacted, "you're left with something that looks lots like Swiss cheese and that is not very comprehensible."

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

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