US intelligence officials: NSA reform bill is ‘flawed’

The USA Freedom Act, introduced last Tuesday by more than 85 U.S. lawmakers, would reduce NSA surveillance capabilities to the levels before the Sept. 11, 2001, terrorist attacks on the U.S., said Brad Wiegmann, deputy assistant attorney general of the National Security Division of the U.S. Department of Justice.

Wiegmann and other U.S. intelligence officials faced questions about alternatives to the controversial NSA phone records collection program during a hearing of the U.S. Privacy and Civil Liberties Oversight Board (PCLOB). The USA Freedom Act, sponsored by Senator Patrick Leahy, a Vermont Democrat, and Representative Jim Sensenbrenner, a Wisconsin Republican, would “essentially shut down” the phone records program, said Robert Litt, general counsel of the U.S. Office of the Director of National Intelligence.

The USA Freedom Act would require the NSA to show the records it seeks to collect are related to a foreign power, a suspected agent of a foreign power or a person in contact with a suspected agent. Among other changes, the bill would also require the NSA to get court orders to search U.S. residents’ communications obtained without individualised warrants.

The bill is “flawed” because it presumes intelligence officials often have specific targets when looking for terrorist activity, said Patrick Kelley, acting general counsel of the Federal Bureau of Investigation. “That’s the essence of terrorism prevention – we don’t know who we’re after,” he said.”If we’re limited to seeing numbers from a known [suspect], then we’re not very effective.”

The model of targeting specific suspects when trying to prevent terrorism doesn’t work well, Kelley added. “We’re connecting the dots here, so the fewer dots we that have, the fewer connections we’ll make,” he said. “You are reducing the amount of data available and therefore making it much more difficult to make the connections that we need to make.”

PCLOB member Rachel Brand asked Litt if he would support a special advocate to argue for privacy issues at the U.S. Foreign Intelligence Surveillance Court, a proposal in the USA Freedom Act and advocated by several privacy advocates.

Litt said he has concerns about the special advocate assigned to the FISC. He questioned how such an advocate would have legal standing before the court. The addition of a special advocate at the FISC would also mean some terrorism suspects have more legal representation than U.S. residents have when law enforcement agencies are seeking court-ordered warrants, he said.

“Are you going to set up a process that provides more protection for a terrorist than for Americans who are subject of criminal search warrants?” he said.

PCLOB members questioned the limits of the NSA’s authority to collect telephone and other records. “One question is, what’s next? What could be next?” said board member James Dempsey. “What if the government decided it wanted to go back and start using [the Patriot Act to collect] Internet metadata?”

Dempsey asked if the NSA could use the same rationale it has used to collect telephone records to collect U.S. residents’ Internet records.

Section 215 of the Patriot Act allows the NSA to collect tangible business records, Litt said. “It’s not clear to me that the same legal authority could be used with respect to Internet service providers,” he said.

The NSA had to provide evidence to the FISC that the bulk collection of telephone records was relevant to its antiterrorism efforts, Litt added. “We’d have to make that same showing to the court for another category of data,” he said.

The FISC also put significant limitations on the NSA’s use of the telephone data, he added. Any other bulk records collection program would face the same scrutiny, he said.

Intelligence officials told the board that NSA employees can only query the bulk telephone records for cases of counterterrorism, and those queries can only be more widely disseminated in a terrorism case.

Board member Patricia Wald asked if the NSA’s search capabilities were mainly limited “to the technological capability of your search instruments,” and not legal controls. “Can that be further expanded if new technological tools would allow you greater search capacity in this or other bulk programs?” she said. “Could the haystack be made as big as the technology tools you have [allow]?”

The FISC has considered the NSA’s technological capabilities, but the court has not given the agency automatic authority to move forward as technology advances, said the DOJ’s Wiegmann. “You have to look at all of the other factors the court considered,” he said. “How important is the information? How necessary is it to get the information?”