May 11, 2006 04:26 PM Posted By
Guest Blogger: NSA Again Violates the Law
By Kate Martin
Director, Center for National Security Studies
Snip...
Compiling a data-base of the phone calls of millions of Americans is not likely to find actual terrorists, but is a dangerous threat to the privacy and associational rights of Americans. The NSA is apparently building a database of everyone’s associations, which can then be supplemented with the vast array of other information available to the government.
The administration deceived the American public and the Congress about its activities when it failed to disclose this program. The existence of the program goes to the heart of the recent debates about the Patriot Act, NSA eavesdropping and data-mining.
It is illegal for the NSA to obtain records of phone numbers from the telephone companies unless the FISA court authorized it. The Stored Communications Act prohibits the telephone companies from disclosing such information to the government unless they receive a subpoena or a court order for the records. 18 U.S.C. 2702(c), 2703 (c).
Snip...
UPDATE:
Since yesterday, more questions have been asked:
Could the FBI simply have obtained the same information using a National Security Letter (NSL) administrative subpoena and then shared the information with the NSA? The short answer is no.
Some have suggested that the administration could have obtained the same information through the FBI. But this misunderstands the respective roles of the agencies and the limits on FBI and NSA activity. As the NSA would have been first to admit before its cooptation by the White House, it did not do “domestic intelligence.” That was the province of the FBI even when the intelligence concerned foreign threats. The NSA had strict rules protecting information about Americans that it came across, and more fundamentally did not aim its giant satellites and computers at domestic phone and e-mail traffic. The threat to Americans’ privacy from the unselective and enormous computing power of the NSA was too great.
The FBI on the other hand, operates with greater transparency, reports to the Attorney General, not the intelligence czar or the Secretary of Defense, and conducts specific targeted foreign intelligence investigations. As FBI officials repeatedly stress, their terrorism and foreign intelligence investigations start from known facts and look at individual potential suspects. (Which is not to say that they do not do data-mining, but it begins from a different premise.) The Attorney General issues rules governing those investigations. Again, while those rules are weaker than they should be, they do presume targeted investigations; not in the words of General Hayden the “driftnet” over Americans’ phone calls described by USA today.
Accordingly, when Congress gave the FBI the power to issue an NSL administrative subpoena for telephone records in an intelligence investigation, it did not give the FBI the authority to subpoena all records on everyone. When Congress first provided for secret FBI counterintelligence access to stored telephone records in 1986, it limited its access to records concerning a suspected spy or terrorist, i.e., an “agent of a foreign power” under the FISA. Congress broadened the reach of that NSL power in the Patriot Act in 2001 when it deleted the required nexus to a suspected spy or terrorist, and allowed the FBI secret access to telephone records “relevant to an authorized investigation to protect against international terrorism.” 18 USC 2709 (as amended by section 505 of the Patriot Act.). While that amendment has been criticized by all of us in the civil liberties community, it was not without any limit at all. In restricting seizures of records to those relevant to an authorized investigation, Congress incorporated the Attorney General rules as well as its understanding about how FBI investigations proceed.
FBI officials over the years have repeatedly told me that they do not simply collect all data on Americans and would not do so. While they may well collect more data than they should, only unprecedented White House orders could result in the FBI attempting to use its NSL authority to obtain all the phone records that the NSA has now collected. And certainly Congress has never authorized such collection by the FBI.
Could the FISA Court properly issue an order authorizing the NSA to obtain all these records? We don’t know if the FISA court issued an order, although it seems doubtful. Unlike the telephone calls with Al Qaeda for which a FISA warrant could probably have been obtained, it is not at all clear that the FISA court could properly authorize seizure of all the phone records of all Americans.
http://www.acsblog.org/bill-of-rights-2835-guest-blogger-nsa-again-violates-the-law.html
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