Privacy SOS

Spy agency officials face heat in congress, and take their message on the road

The big NSA spying news this week is that analysts can spy on the communications and query the phone and internet records of people "three hops" away from a suspect. That means potentially hundreds of millions of people are under the NSA's microscope, to a degree that officials had previously never confirmed, or in some cases actively denied.

High level spy officials were all over the news this week. Sometimes, like in the video below, they were given what amount to propaganda platforms to discuss their side of the story. But they were also grilled about their wide-ranging programs targeting domestic communications (more about that further below).

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General Keith Alexander spoke yesterday at the Aspen Institute about his NSA's massive surveillance operations, among them programs directed squarely at records about domestic communications. During his talk, he mentions this "three hop" rule, but it doesn't elicit much of a response from his interviewer.

While you watch this, keep in mind that Alexander has a habit of saying things that later prove to be false, or at least very misleading

In the interview, Alexander boasts that NSA stopped Najibullah Zazi — the man authorities said planned to blow up the NYC subway — thanks to its ability to collect the private phone and internet records of everyone in the United States. The government's success in stopping Zazi hinged on the metadata program, Alexander alleges. The facts show otherwise. The spy chief then says that NSA's programs have stopped 42 terrorist attacks and led to 12 convictions for 'material support for terrorism,' though he provides no evidence for this assertion or details to back it up.

Later in the interview, Alexander says that NSA does not have the "technical capability" to spy on Americans' communications. His own agency's power-point presentations show otherwise.

The conversation at the Aspen Institute was a perfect setting for General Alexander. Dressed in his military regalia, he cracked jokes with the person interviewing him, drawing laughter from a presumably friendly audience.

But we've seen more interesting appearances from high-level intelligence officials this week, too.

On Wednesday, the House Judiciary Committee held a hearing on FISA authorities. Among the more heated parts of the four-hour long hearing was Congressman Blake Farenthold's grilling of deputy attorney general James Cole about the metadata surveillance program, which the government argues is authorized under Section 215 of the USA Patriot Act. Their exchange gets at the heart of the problem: mass collection of private personal information, to be used someday if the government wants to use it.

Farenthold: How is having every phone call that I make to my wife, to my daughter, relevant to any terror investigation?

Cole: I don't know that every call you make to your wife —
Farenthold: But you've got em!
Cole: I don't know that they would be relevant, and we would probably not seek to query them because we wouldn't have the information that we would need to make that query.
Farenthold: But, you know, somebody like Mr. Snowden, might be able to query them without your knowledge.
Cole: I don't believe that's true but Mr. Inglis could answer that. But I don't think he would have access to that or be able to do it.
Inglis: We don't believe he could query those without our knowledge, and therefore those would be caught.
Farenthold: That's slightly reassuring. The Fourth Amendment specifically was designed, as Judge Poe pointed out, to prohibit general warrants. How could collecting every piece of phone data be perceived as anything but a general warrant? 
Cole: Because the phone data, according to the Supreme Court, is not something within which citizens have a reasonable expectation of privacy. 
Farenthold: So do I have a reasonable expectation of privacy in any information that I share with any company? My Google searches, the email I send. Do I have a reasonable expectation of privacy in anything but maybe a letter that I hand deliver to my wife from a skiff?
Cole: Those are all dependent on the facts and circumstances of the documents we're talking about. In the case of metadata the Supreme Court specifically ruled that there was not coverage by the Fourth Amendment because of no reasonable expectation of privacy. 
Farenthold: I just want to point out how concerned I am about this data being so easily available, and just with a stroke of a pen Congress and the President could change the search criteria…change the definition of a terrorist. The fact that this data exists in the hands of the government…we saw with the IRS has done with tax returns, targeting people for political beliefs. Let me ask you one other quick question: Why do these orders not violate the First Amendment? We've talked a lot about the Fourth Amendment, but why doesn't it violate the First Amendment — my right to freedom of association and my freedom of speech — having the government know who I'm talking to and when? 
Cole: Again these are issues that are looked at by the court, and determining whether any kind of constitutional rights are involved. We don't know who it is that has this specific phone number that's being called —
Farenthold: Can't you look that up on white pages on the internet? [throwing up his hands] I yield back. 

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Another interesting exchange occurred when Congressman Sensenbrenner, one of the authors of the original USA Patriot Act, tried to drill down on the concept of 'relevance' to a foreign terrorist investigation. He points out that, instead of courts making a determination about what is and is not relevant, it is in fact shadowy spy agencies that decide. He says that this relevance standard is not what he intended to create when he authored and ushered the passage of the Patriot Act, and its 2006 reauthorization. Sensenbrenner warns that if something doesn't change, the spy agencies won't have Section 215 to work with come time to reauthorize it.

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You can see the full, four hour-plus hearing below:

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Meanwhile, Senator Ron Wyden today tweeted this, in response to a statement made by ODNI general counsel Robert Litt at a Brookings Institution speech this morning:

You can see that speech here.

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