July 31, 2013

With three 'hops,' U.S. can mine millions of U.S. phone records

Congress and national security experts engage in a push-pull debate over how much snooping the government should do in the name of defense.

The Associated Press

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From left, National Security Agency Deputy Director John C. Inglis, Robert Litt, general counsel in the Office of Director of National Intelligence, and Sean Joyce, deputy director of the FBI, testify on Capitol Hill in Washington on Wednesday as the Senate Intelligence Committee questioned top Obama administration officials about the National Security Agency's surveillance programs.

The Associated Press

John Inglis, the NSA's deputy director, conceded the point but said NSA officials "try to be judicious" about conducting hop analysis.

"And so while, theoretically, 40 times 40 times 40 gets you to a large number, that's not typically what takes place," he said. "We have to compare the theory to the practice."

Such reassurances have done little to quell the sharp criticism from both parties over the once-secret program. Last week saw a close vote in the House on a measure that aimed to kill the phone surveillance program.

On Wednesday, the administration acknowledged some limitations to its sweeping surveillance powers are inevitable.

"We are open to re-evaluating this program in ways that can perhaps provide greater confidence and public trust that this is in fact a program that achieves both privacy protections and national security," Robert Litt, counsel to the Office of the Director of National Intelligence, told skeptical members of the Senate Judiciary Committee.

This newest privacy-vs.-security debate was touched off when former government contract systems analyst Edward Snowden leaked classified documents exposing NSA programs that store years of phone records on every American. That revelation prompted the most significant reconsideration yet of the vast surveillance powers Congress granted the president after the Sept. 11, 2001, attacks.

The administration intended to keep the telephone program a secret, and for more than a decade few in Congress showed any interest in limiting the surveillance. Snowden's leaks abruptly changed the calculus on Capitol Hill.

"We have a lot of good information out there that helps the American public understand these programs, but it all came out late," Sen. Sheldon Whitehouse, D-R.I., said in a rebuke of government secrecy. "It all came out in response to a leaker. There was no organized plan for how we rationally declassify this so that the American people can participate in the debate."

The telephone program is authorized under a provision of the USA Patriot Act, which Congress hurriedly passed after 9/11. President George W. Bush's administration said then what Obama's administration says now: that in order to connect the dots, it needs to collect lots of dots.

Leahy was skeptical.

"There's always going to be dots to collect, analyze and try to connect," he said. "Government is already collecting data on millions of innocent Americans on a daily basis based on a secret legal interpretation of a statute that does not on its face appear to authorize this kind of bulk collection. So what's going to be next? When is enough enough?"

Several Democrats promised bills that would provide tighter controls or more transparency. Proposals include eliminating the FBI's ability to seize data without a court order, changing the way judges are appointed to the surveillance court and appointing an attorney to argue against the government in secret proceedings before that court. Another measure would force the government to reveal how many Americans have had their information swept up in surveillance.

Inglis said the NSA was willing to reconsider whether it needed to keep phone data for five years. And Deputy Attorney General James Cole said the Justice Department was considering whether and how to allow an outside attorney into the secret court to argue against the government.

Last week's House vote of 217-205 defeating an attempt to dismantle the program was significant not only because of the narrowness of the victory for the Obama administration, but also because it created unusual political coalitions. Libertarian-leaning conservatives and liberal Democrats pressed for change against establishment Republicans and Congress' pro-security lawmakers.

Backing the NSA program were 134 Republicans and 83 Democrats, including House Speaker John Boehner, R-Ohio, who typically does not vote, and Democratic leader Nancy Pelosi. Rejecting the administration's last-minute pleas to spare the surveillance operation were 94 Republicans and 111 Democrats.

NSA Director Keith Alexander did not attend Wednesday's hearing. Instead he addressed the Black Hat hackers conference in Las Vegas, where he remained unapologetic even in the face of heckling from the audience.

Alexander drew laughter when a voice in the overflow crowd shouted that he should read the Constitution. Alexander said he had, and the heckler should, too.

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