• Top spook agency says it has right to violate citizens’ privacy, but you don’t
By Keith Johnson
The prying eyes and ears over at the National Security Agency (NSA) refuse to divulge how many Americans have had their telephone calls and emails monitored, claiming that such a disclosure would “violate the privacy of U.S. persons.”
In May, Senators Mark Udall (D-Colo.) and Ron Wyden (D-Oreg.)—both members of the Senate Intelligence Committee—asked the NSA to come clean about the extent of their spying on American citizens under the sweeping powers granted to them by Section 702 of the Foreign Intelligence Surveillance Act (FISA). The answer they received left them scratching their heads.
According to a letter obtained by Wired magazine’s Danger Room, Inspector General I. Charles McCullough of the Office of the Director of National Intelligence denied the senators’ request. In addition to citing the aforementioned “privacy” issue, McCullough stated that “obtaining such an estimate [was] beyond the capacity of the agency,” and to do so “would likely impede the NSA’s mission.”
“I thought this response transmitted by the inspector general was a joke,” said Aftergood. “But evidently it was meant seriously.”
When asked what the spy agency’s “mission” is in the context of collecting data on U.S. citizens, Aftergood replied: “Under most circumstances, the NSA has no business whatsoever collecting the communications of U.S. persons. The exceptions are in cases of counterintelligence and counterterrorism, when there is probable cause to believe that a U.S. person is acting as an agent of a foreign power or is a terrorist, and the ensuing surveillance is authorized by the Foreign Intelligence Surveillance Court.”
This newspaper also spoke with Alan Butler, appellate advocacy counsel for the Electronic Privacy Information Center (EPIC). When asked to offer his interpretation of the government’s vague reference to privacy concerns, Butler said:
“They may be implying that they have some broad collection of communications under these problematic surveillance orders, but that to open up the black box and start to look inside and see whether specific communications involved U.S. persons would require a human being to search through and review them. So they’re trying to take this position that when they search, store and categorize [communications data] automatically, that’s somehow less of a privacy violation. I think this view is problematic for a number of reasons, but that would be my best guess.”
Butler is not particularly surprised by the NSA’s response, saying that the agency has been historically tight-lipped about what they do.
“We’ve been engaged in litigation with the NSA recently over some issues and documents we requested under the Freedom of Information Act (FOIA),” said Butler. “The NSA will give what’s commonly referred to as a ‘glomar’ response, which is that it can neither confirm nor deny the existence of some records that we’ve requested.”
Butler added that the NSA claims that their activities and functions—particularly as they relate to their signals intelligence work—are exempt from compliance with FOIA.
“So, when someone requests information about whether [the NSA] intercepted somebody’s communications or communication records, they’ll come back and say they can’t confirm or deny because if their mission, and then they’ll describe that mission in a declaration or statement by an NSA official,” said Butler.
On June 19—one day after Wyden and Udall learned that their request had been denied—the House Judiciary Committee voted 23-11 in favor of reauthorizing the FISA Amendment Act for another five years. The measure has now been sent to the House floor for a full vote.
“We recently testified before the House Judiciary Committee on Crime, Terrorism [and Homeland Security] about the reauthorization provision itself,” said Butler. “Our basic position has been that there should be greater transparency about the workings of FISA, especially section 702.”
According to Butler, Section 702 allows federal agents (upon approval by a FISA court) to engage in broad surveillance activities with loosely defined targets.
“They may target all communications into and out of a particular foreign city,” said Butler, “and the question as to whether or not any American communications get caught up in those problematic surveillance activities is not directly assessed in the FISA currently, because it only prohibits them from intentionally targeting Americans or domestic communications. Unintentional collection can occur, and probably has occurred, but they will not tell us to what extent that has happened.”
Keith Johnson in an investigative journalist and host of the Revolt of the Plebs radio program.