[Infowarrior] - NSA Program Faces Backlash

[Richard Forno]

Los Angeles Times
July 28, 2013 

NSA Program Faces Backlash

http://www.latimes.com/news/nationworld/nation/la-na-nsa-politics-20130728,0,7931139.story

As support for mass collection of phone records erodes, changes appear
likely.

By Ken Dilanian

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.

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.

"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.

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.

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.

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.

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."

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."

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.

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.

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.

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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