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NSA faces backlash over collecting phone data

Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) has defended the NSA’s collection of phone records, but is among those who concede that changes to the program will probably be needed.
(Jacquelyn Martin, Associated Press)

WASHINGTON — A reporter recently asked the National Security Agency’s chief a blunt question: Why can’t he come up with a better example of a terrorism plot foiled through the bulk collection of U.S. phone records?

In the weeks since Edward Snowden disclosed that the NSA had been collecting and storing the calling histories of nearly every American, NSA Director Keith Alexander and other U.S. officials have cited only one case as having been discovered exclusively by searching those records: some San Diego men who sent $8,500 to Al Qaeda-linked militants in Somalia.

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Although intelligence officials and the White House continue to defend the mass data collection, support has clearly eroded among the public and in Congress. A coalition of libertarians on the right and civil liberties advocates on the left came six votes short of passing an amendment in the House last week to curtail bulk collection of phone records, but no one believes that will be the last word.

Even Rep. Mike Rogers (R-Mich.) and Sen. Dianne Feinstein (D-Calif.), the House and Senate intelligence committee leaders who have defended the NSA’s collection of phone records since the program was disclosed, are among those who concede that changes would probably be needed.

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“We will work to find additional privacy protections with this program,” Rogers said during House debate over the amendment.

The shift in public opinion about the government’s data collection efforts is clear. A Pew Research Center survey released Friday asked Americans whether they were more concerned that government programs to combat terrorism were going too far and endangering civil liberties or that they were not going far enough and leaving the country unprotected. For the first time since Pew began asking that question in 2004, more Americans, 47%, said their greater concern was the threat to civil liberties, compared with 35% who worried the programs don’t go far enough to protect the country.

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As recently as 2010, only a third of Americans said they worried the government’s anti-terrorism efforts went too far.

In part, that change may reflect the passage of time and the fading of the intense emotions generated by the Sept. 11, 2001, attacks. But much of the shift seems attributable to Snowden’s disclosures, the resulting debate and the difficulty that intelligence officials have had in convincing the public that their vast and expensive data-collection efforts are actually accomplishing much.

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The government “has not done a good job justifying it,” said Fred Cate, a privacy law expert and law professor at Indiana University. “I leave open the possibility that there are cases they can’t talk about. It’s also possible this is an entirely worthless program. Let’s face it — a lot of government investments are.”

If the government were to curtail the collection of telephone data or drop it entirely, the rollback would not be unprecedented. In 2011, according to Snowden’s disclosures, the intelligence agencies quietly discontinued a then-secret program that collected email metadata on Americans — “to” and “from” information, not content — because it wasn’t yielding much of value.

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U.S. intelligence officials insist the telephone program is different. They collect and store domestic records of telephone calls, they say, so that they never repeat what happened before the Sept. 11 attacks, when an Al Qaeda terrorist was calling partners in Yemen, but the NSA didn’t realize the calls were coming from San Diego.

But since Sept. 11, U.S. intelligence agencies have gotten better at tracking terrorists abroad and keeping them from entering the U.S. The collection of phone records may no longer be essential, according to some lawmakers who have studied the subject.

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Sen. Ron Wyden (D-Ore.), a longtime critic of government surveillance, said last week that he had pressed the intelligence community behind the scenes about the collection of telephone records, and that he would lead an effort to reform NSA surveillance.

Rep. Adam B. Schiff (D-Burbank), a member of the House Intelligence Committee, said, “I don’t think the intelligence community has been very definitive either with the public or with Congress about how often this program has played a role in stopping plots, and what sort of role it has played.”

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For example, one of the cases that intelligence officials often mention — and that Alexander cited in his reply to the question from Politico’s Josh Gerstein during a recent conference in Aspen, Colo. — is the investigation into a 2009 plot to target the New York subway system. But that investigation, although it apparently made use of domestic calling records, began with a tip from a less controversial NSA surveillance program aimed at foreigners.

Outgoing FBI Director Robert S. Mueller III told Congress there had been 10 to 12 cases in which the phone data were important, but he offered none besides the one in San Diego, in which, he said, the collection had been “instrumental.”

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Schiff is pushing three legislative proposals. He wants judges on the Foreign Intelligence Surveillance Court, or FISA, which holds secret proceedings to oversee the surveillance, to be appointed by the president and confirmed by the Senate. Currently, the Supreme Court’s chief justice appoints sitting federal judges to the intelligence court. Almost all of its members have been Republican appointees, many with backgrounds as prosecutors or in other executive branch posts, which may incline them to favor the government, critics say.

Schiff also backs a plan pushed by some former judges of the foreign intelligence court to set up a team of lawyers who could argue before the court to represent privacy interests. The judges now consider government surveillance requests in hearings with only the lawyers representing the intelligence agencies present.

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Schiff also wants to change the phone records program so that phone service providers keep the records, not the government. The NSA would query the records as needed with court approval, much as it does now. Administration officials have said that the government would have to pay the companies to store the vast amounts of data involved and that having the data held separately by each company would greatly increase the costs and complexity of the system.

“I think there will be reforms to the FISA court, and I think there will be a restructuring of this program,” Schiff said.

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Regardless of what happens in the near future, another date is looming: In 2015, the law that gives the government its surveillance authority will be up for renewal. For the current programs to continue, a bill would have to pass the House and Senate.

Without major changes, “there are not the votes” to keep the current data collection programs running, Rep. F. James Sensenbrenner Jr. (R-Wis.) told intelligence officials at a House Judiciary Committee hearing this month.

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In 2001, Sensenbrenner sponsored the Patriot Act, the law under which the Justice Department says it is acting. He believes the government has stretched the law he helped write.

Unless the intelligence agencies agree to changes, he warned, they’re “going to lose it entirely.”

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ken.dilanian@latimes.com


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