The Office of the Director of National Intelligence Defends NSA Surveillance Programs
Here’s a transcript of a panel discussion about NSA surveillance. There’s a lot worth reading here, but I want to quote Bob Litt’s opening remarks. He’s the General Counsel for ODNI, and he has a lot to say about the programs revealed so far in the Snowden documents.
I’m reminded a little bit of a quote that, like many quotes, is attributed to Mark Twain but in fact is not Mark Twain’s, which is that a lie can get halfway around the world before the truth gets its boots on. And unfortunately, there’s been a lot of misinformation that’s come out about these programs. And what I would like to do in the next couple of minutes is actually go through and explain what the programs are and what they aren’t.
I particularly want to emphasize that I hope you come away from this with the understanding that neither of the programs that have been leaked to the press recently are indiscriminate sweeping up of information without regard to privacy or constitutional rights or any kind of controls. In fact, from my boss, the director of national intelligence, on down through the entire intelligence community, we are in fact sensitive to privacy and constitutional rights. After all, we are citizens of the United States. These are our rights too.
So as I said, we’re talking about two types of intelligence collection programs. I want to start discussing them by making the point that in order to target the emails or the phone calls or the communications of a United States citizen or a lawful permanent resident of the United States, wherever that person is located, or of any person within the United States, we need to go to court, and we need to get an individual order based on probable cause, the equivalent of an electronic surveillance warrant.
That does not mean and nobody has ever said that that means we never acquire the contents of an email or telephone call to which a United States person is a party. Whenever you’re doing any collection of information, you’re going to—you can’t avoid some incidental acquisition of information about nontargeted persons. Think of a wiretap in a criminal case. You’re wiretapping somebody, and you intercept conversations that are innocent as well as conversations that are inculpatory. If we seize somebody’s computer, there’s going to be information about innocent people on that. This is just a necessary incident.
What we do is we impose controls on the use of that information. But what we cannot do—and I’m repeating this—is go out and target the communications of Americans for collection without an individual court order.
So the first of the programs that I want to talk about that was leaked to the press is what’s been called Section 215, or business record collection. It’s called Section 215 because that was the section of the Patriot Act that put the current version of that statute into place. And under that this statute, we collect telephone metadata, using a court order which is authorized by the Foreign Intelligence Surveillance Act, under a provision which allows a government to obtain business records for intelligence and counterterrorism purposes. Now, by metadata, in this context, I mean data that describes the phone calls, such as the telephone number making the call, the telephone number dialed, the data and time the call was made and the length of the call. These are business records of the telephone companies in question, which is why they can be collected under this provision.
Despite what you may have read about this program, we do not collect the content of any communications under this program. We do not collect the identity of any participant to any communication under this program. And while there seems to have been some confusion about this as recently as today, I want to make perfectly clear we do not collect cellphone location information under this program, either GPS information or cell site tower information. I’m not sure why it’s been so hard to get people to understand that because it’s been said repeatedly.
When the court approves collection under this statute, it issues two orders. One order, which is the one that was leaked, is an order to providers directing them to turn the relevant information over to the government. The other order, which was not leaked, is the order that spells out the limitations on what we can do with the information after it’s been collected, who has access, what purposes they can access it for and how long it can be retained.
Some people have expressed concern, which is quite a valid concern in the abstract, that if you collect large quantities of metadata about telephone calls, you could subject it to sophisticated analysis, and using those kind of analytical tools, you can derive a lot of information about people that would otherwise not be discoverable.
The fact is, we are specifically not allowed to do that kind of analysis of this data, and we don’t do it. The metadata that is acquired and kept under this program can only be queried when there is reasonable suspicion, based on specific, articulable facts, that a particular telephone number is associated with specified foreign terrorist organizations. And the only purpose for which we can make that query is to identify contacts. All that we get under this program, all that we collect, is metadata. So all that we get back from one of these queries is metadata.
Each determination of a reasonable suspicion under this program must be documented and approved, and only a small portion of the data that is collected is ever actually reviewed, because the vast majority of that data is never going to be responsive to one of these terrorism-related queries.
In 2012 fewer than 300 identifiers were approved for searching this data. Nevertheless, we collect all the data because if you want to find a needle in the haystack, you need to have the haystack, especially in the case of a terrorism-related emergency, which is—and remember that this database is only used for terrorism-related purposes.
And if we want to pursue any further investigation as a result of a number that pops up as a result of one of these queries, we have to do, pursuant to other authorities and in particular if we want to conduct electronic surveillance of any number within the United States, as I said before, we have to go to court, we have to get an individual order based on probable cause.
That’s one of the two programs.
The other program is very different. This is a program that’s sometimes referred to as PRISM, which is a misnomer. PRISM is actually the name of a database. The program is collection under Section 702 of the Foreign Intelligence Surveillance Act, which is a public statute that is widely known to everybody. There’s really no secret about this kind of collection.
This permits the government to target a non-U.S. person, somebody who’s not a citizen or a permanent resident alien, located outside of the United States, for foreign intelligence purposes without obtaining a specific warrant for each target, under the programmatic supervision of the FISA Court.
And it’s important here to step back and note that historically and at the time FISA was originally passed in 1978, this particular kind of collection, targeting non-U.S. persons outside of the United States for foreign intelligence purposes, was not intended to be covered by FISA as at all. It was totally outside of the supervision of the FISA Court and totally within the prerogative of the executive branch. So in that respect, Section 702 is properly viewed as an expansion of FISA Court authority, rather than a contraction of that authority.
So Section 702, as I—as I said, it’s—is limited to targeting foreigners outside the United States to acquire foreign intelligence information. And there is a specific provision in this statute that prohibits us from making an end run about this, about—on this requirement, because we are expressly prohibited from targeting somebody outside of the United States in order to obtain some information about somebody inside the United States. That is to say, if we know that somebody outside of the United States is communicating with Spike Bowman, and we really want to get Spike Bowman’s communications, we’ve got to get an electronic surveillance order on Spike Bowman. We cannot target the out the person outside of the United States to collect on Spike.
In order to use Section 702, the government has to obtain approval from the FISA Court for the plan it intends to use to conduct the collection. This plan includes, first of all, identification of the foreign intelligence purposes of the collection; second, the plan and the procedures for ensuring that the individuals targeted for collection are in fact non-U.S. persons who are located outside of the United States. These are referred to as targeting procedures. And in addition, we have to get approval of the government’s procedures for what it will do with information about a U.S. person or someone inside the United States if we get that information through this collection. These procedures, which are called minimization procedures, determine what we can keep and what we can disseminate to other government agencies and impose limitations on that. And in particular, dissemination of information about U.S. persons is expressly prohibited unless that information is necessary to understand foreign intelligence or to assess its importance or is evidence of a crime or indicates a—an imminent threat of death or serious bodily harm.
And again, these procedures, the targeting and minimization procedures, have to be approved by the FISA court as consistent with the statute and consistent with the Fourth Amendment. And that’s what the Section 702 collection is.
The last thing I want to talk about a little bit is the myth that this is sort of unchecked authority, because we have extensive oversight and control over the collection, which involves all three branches of government. First, NSA has extensive technological processes, including segregated databases, limited access and audit trails, and they have extensive internal oversight, including their own compliance officer, who oversees compliance with the rules.
Second, the Department of Justice and my office, the Office of the Director of National Intelligence, are specifically charged with overseeing NSA’s activities to make sure that there are no compliance problems. And we report to the Congress twice a year on the use of these collection authorities and compliance problems. And if we find a problem, we correct it. Inspectors general, independent inspectors general, who, as you all know, also have an independent reporting responsibility to Congress, also are charged with undertaking a review of how these surveillance programs are carried out.
Any time that information is collected in violation of the rules, it’s reported immediately to the FISA court and is also reported to the relevant congressional oversight committees. It doesn’t matter how small the—or technical the violation is. And information that’s collected in violation of the rules has to be purged, with very limited exceptions.
Both the FISA court and the congressional oversight committees, which are Intelligence and Judiciary, take a very active role in overseeing this program and ensuring that we adhere to the requirements of the statutes and the court orders. And let me just stop and say that the suggestion that the FISA court is a rubber stamp is a complete canard, as anybody who’s ever had the privilege of appearing before Judge Bates or Judge Walton can attest.
Now, this is a complex system, and like any complex system, it’s not error free. But as I said before, every time we have found a mistake, we’ve fixed it. And the mistakes are self-reported. We find them ourselves in the exercise of our oversight. No one has ever found that there has ever been—and by no one, I mean the people at NSA, the people at the Department of Justice, the people at the Office of the Director of National Intelligence, the inspectors general, the FISA court and the congressional oversight committees, all of whom have visibility into this—nobody has ever found that there has ever been any intentional effort to violate the law or any intentional misuse of these tools.
As always, the fundamental issue is trust. If you believe Litt, this is all very comforting. If you don’t, it’s more lies and misdirection. Taken at face value, it explains why so many tech executives were able to say they had never heard of PRISM: it’s the internal NSA name for the database, and not the name of the program. I also note that Litt uses the word “collect” to mean what it actually means, and not the way his boss, Director of National Intelligence James Clapper, Jr., used it to deliberately lie to Congress.