Senate Intelligence to mark up bill that expands surveillance

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The Senate Intelligence Committee intends to mark up a bill this week that would place limits on the bulk storage by the National Security Agency of telephone records but that keeps the program intact--and grants new authority to the intelligence community to look at the contents of communications.

The new authority would plug what Sen. Dianne Feinstein (D-Calif.), chairwoman of the Senate committee, said in a Sept. 26 hearing is a loophole caused when a foreigner reasonably thought to be abroad who's the target of surveillance permitting intelligence analysts to see the actual content of communications enters and stays inside the United States. At that point, Section 702 of the FISA Amendment Act (codified at 50 USC § 1181a) requires the NSA to halt surveillance.

"This collection is stopped just as the individual may be--may be--of the greatest concern," Feinstein said. As a result, the bill that Feinstein and committee ranking member Sen. Saxby Chambliss (R-Ga.) intend to sponsor would allow the intelligence community to continue surveilling the target's communications for 7 days under FISA Amendment Act authority while seeking an individualized Fourth Amendment warrant from the Foreign Intelligence Surveillance Court. Feinstein said the bill will stipulate that if the court doesn't grant the warrant, data collected during the 7 day grace period would be deleted.

Other changes the bill will call for include FISC review of each phone number for which the NSA determines there exists a "reasonable, articulable suspicion" that it's associated with terrorism and a codification into statute of the reasonable, articulable suspicion standard, Feinstein said. In addition, the head of the National Security Agency would become a Senate-confirmed position. Feinstein said it would also decrease the length of time the NSA can hold on to telephone records; currently, it retains them for 6 years.

The Feinstein-Chambliss bill will hardly be the only piece of legislation seeking to alter intelligence community surveillance powers. Sens. Ron Wyden (D-Ore.), Mark Udall (D-Colo.), Richard Blumenthal (D-Conn.) and Rand Paul (R-Ky.) days before the committee hearing introduced a bill (.pdf) that would outright end the bulk collection of telephone call records.

During the hearing, Udall asked if the same legal justification used to justify bulk telephone record collection--based on Section 215 of the Patriot Act (codified at 50 USC § 1861)--can be applied to other types of records.

U.S. Deputy Attorney General James Cole said the NSA would have to demonstrate to the FISC that bulk collection "is necessary in order to find something relevant to a foreign intelligence investigation of particular types."

An Aug. 29 FISC opinion on bulk collection released in September by the Office of the Director of National Intelligence said records of all telephone records passing through U.S. carrier switches are relevant for counterterrorism purposes because only by collecting such metadata can analysts later map out a terrorist network as revealed by patterns of telephone calls.

The Aug. 29 opinion expressly excluded from the bulk storage metadata program cell site location information, which would allow analysts to know at least roughly the geographic location of a caller using a mobile phone. NSA head Gen. Keith Alexander acknowledged at the hearing that the agency has at least made plans for the bulk storage of cell site location information.

Asked by Wyden if the "NSA ever collected or ever made any plans to collect Americans' cell site information," Alexander said "we did," noted the language in the Aug. 29 opinion, and added that he didn't want to "put out in an unclassified forum anything that's classified here."

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, has also said he will introduce legislation to end bulk telephony metadata collection. An attempt in the House of Representatives to defund bulk collection through an amendment to the defense spending bill for the coming fiscal year failed in July by a close vote of 217-205.

For more:
- watch the Sept. 26 Senate Intelligence Committee hearing on C-SPAN

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