The top U.S. intelligence official addressed the recent revelations about the National Security Agency’s covert cell-phone and email data collection surveillance programs on Thursday, saying that the programs have been ongoing for years, are fully authorized under U.S. law and that the leaks regarding the programs are “reprehensible” and could endanger the country’s national security.
James Clapper, the director of national intelligence, issued two separate statements on Thursday in response to media reports on the classified order giving the NSA access to all of Verizon’s call metadata, saying that not only is the program lawful, but that’s it’s vital to protecting the country’s security and ferreting out potential terrorist activity. The data collection program is authorized under section 702 of the Foreign Intelligence Surveillance Act, and Clapper said that it specifically prohibits the NSA from targeting U.S. citizens.
“Section 702 is a provision of FISA that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States. It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States,” Clapper said in his statement.
“Activities authorized by Section 702 are subject to oversight by the Foreign Intelligence Surveillance Court, the Executive Branch, and Congress. They involve extensive procedures, specifically approved by the court, to ensure that only non-U.S. persons outside the U.S. are targeted, and that minimize the acquisition, retention and dissemination of incidentally acquired information about U.S. persons.”
However, Cindy Cohn, legal director at the EFF, said that the programs Clapper describes likely still are beyond the scope of the laws on which they’re predicated.
“I think there are different orders, maybe under different legal authorities, but all unconstitutional, and likely beyond the scope of any reasonable reading of the governing statutes,” Cohn said. “The telco ones are likely different than the internet company ones. It also seems that the functionality of the two is different — Verizon is giving phone records to the NSA and the Internet companies are providing some sort of portal into their systems. But this is still a lot of guesswork.”
Clapper’s remarks follow the publication of a classified order from the Foreign Intelligence Surveillance Court that requires Verizon to turn over all phone metadata–including originating and terminating phone numbers, IMSI numbers and call duration–to the NSA. The program reportedly has been ongoing for at least seven years and privacy experts say that it likely includes the other major cell carriers, as well. Clapper said in a separate statement regarding the leak of the information that the broad scope of the data collection is necessary in order to find potential threat intelligence.
“The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism-related communications. Acquiring this information allows us to make connections related to terrorist activities over time. The FISA Court specifically approved this method of collection as lawful, subject to stringent restrictions,” Clapper said.
“By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.”
The statements from Clapper are rare public discussions of classified programs from the DNI. In an extraordinary move, Clapper responded to the leaks by ordering that some information about the surveillance program be declassified immediately and made public. It’s not clear which portions of his statement contain the declassified information, but Clapper said that it’s important for Americans to understand how the programs work and what they do and don’t include.
“Discussing programs like this publicly will have an impact on the behavior of our adversaries and make it more difficult for us to understand their intentions. Surveillance programs like this one are consistently subject to safeguards that are designed to strike the appropriate balance between national security interests and civil liberties and privacy concerns. I believe it is important to address the misleading impression left by the article and to reassure the American people that the Intelligence Community is committed to respecting the civil liberties and privacy of all American citizens,” he said.
Image from Flickr photostream of Medill DC.