Intelligence official defends mass gathering of phone data

WASHINGTON — A top Obama administration lawyer defended the government’s once-secret policy of sweeping up phone records in the U.S., arguing Friday that this mass data collection violates no one’s right to privacy and can help intelligence agents track suspected terrorists.

“Although we collect large volumes of metadata under this program, we only look at a tiny fraction of it,” Robert S. Litt, general counsel for the director of national intelligence, said in a speech at the Brookings Institution. And agents check the records “only for a carefully circumscribed purpose — to help us find links between foreign terrorists and people in the United States,” he said.

Litt and other Obama administration officials have stepped forward this week in an organized campaign to try to explain and defend a secret data collection policy that was revealed early June by Edward Snowden, a former government contractor.

In another departure from past practice, the director of national intelligence announced Friday that the secret surveillance court order, which expired Friday, had been renewed by the court.

“The government filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the court renewed that authority,” the director of national intelligence said in a statement.

The National Security Agency had been gathering the dialing records from major telephone companies under orders approved by the secret foreign intelligence court. It had done so under part of the Patriot Act that authorized the government to obtain records that were “relevant to an authorized investigation.”

In most crime cases, investigators find a suspect and then go looking for phone or travel records that could confirm guilt.

But a collect-first, search-later policy makes sense for intelligence work, Litt said Friday.

“Rather than attempting to solve crimes that have happened already, we are trying to find out what is going to happen before it happens,” he said.

Litt acknowledged that many lawyers had questioned how collecting all the phone records for months at a time could fit under the Patriot Act’s authorization for records that are “relevant to an authorized investigation.”

Earlier this week, Republicans and Democrats on the House Judiciary Committee sharply disputed the legality of the mass data collection. Several insisted that the law as they wrote it did not authorize an open-ended collection of records.

Litt argued that the word “relevant” sometimes can have an “extremely broad” meaning. He cited instances in which grand juries or civil discovery orders authorized the search of a huge volume of documents, even though only a few of them might prove relevant and useful.

Litt said the “bulk data set” of phone records “can help identify links between terrorists overseas and their potential confederates in the United States.”

“Many will recall that one of the criticisms made by the 9/11 Commission was that we were unable to find the connection between a hijacker who was in California and an Al Qaeda safe house in Yemen. Although the NSA had collected the conversations from the Yemen safe house, they had no way to determine that the person at the other end was in the United States. This collection program is designed to help us find those connections.”

He said telephone companies do not keep the records for long. If the government did not collect the data, it would be destroyed, he said.

Litt also said Americans do not have a constitutional right to privacy in records that are held by banks or phone companies. In 1979, the Supreme Court ruled that although phone conversations are protected as private under the 4th Amendment, dialing records are not.

“We do not get the content of any conversation. We do not get the identity of any party to the conversation, and we do not get any cell site or GPS locational information,” he said.

Although U.S. officials have admitted only to gathering phone records, their legal theory would also appear to permit the routine collection of bank records or travel records, both of which could prove relevant at some point in a terrorism investigation.

david.savage@latimes.com