26 Senators Question NSA's Tactics

Skeptical Lawmakers Seek Answers from Intel Director Clapper
26 Senators Question NSA's Tactics

More than one-quarter of the United States Senate is questioning whether the federal government has gone too far in its quest to prevent future terrorist attacks by using provisions in the USA Patriot Act to collect data about Americans.

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The letter to National Intelligence Director James Clapper, dated June 28, expresses the senators' concerns that secret court interpretations of the Patriot Act, coupled by misleading statements by intelligence officials, prevent ordinary Americans "from evaluating the decisions that their government was making, and will unfortunately undermine trust in government more broadly."

Both houses have intelligence committees that provide oversight, much of it in secret, on programs that collect data on individuals. But the senators who signed the letter could be motivated by wanting to bring more transparency to congressional oversight of these data-collection programs in light of the public confusion over them, says Jacob Olcott, a former counsel on IT security matters for the Senate Commerce, Science and Transportation Committee.

"The way that transparency can come into play is by publishing letters of requests for information and [receiving] redacted response," says Olcott, a principal for cybersecurity at the risk-management adviser Good Harbor Consulting. "That's what lot of this is about, the fact that a lot of people are concerned that Congress has not been doing its diligence in overseeing this program."

Specifically, the senators asked Clapper:

  • How long has the National Security Agency used Patriot Act authorities to engage in bulk collection of Americans' records? Was this collection under way when the law was reauthorized in 2006?
  • Has the NSA used USA Patriot Act authorities to conduct bulk collection of any other types of records pertaining to Americans, beyond phone records?
  • Has the NSA collected or made any plans to collect Americans' cell-site location data in bulk?
  • Have there been any violations of the court orders permitting this bulk collection, or of the rules governing access to these records? If so, please describe these violations.
  • Identify any specific examples of instances in which intelligence gained by reviewing phone records obtained through Section 215 bulk collection proved useful in thwarting a particular terrorist plot.
  • Provide specific examples of instances in which useful intelligence was gained by reviewing phone records that could not have been obtained without the bulk collection authority, if such examples exist.
  • Describe the employment status of all persons with conceivable access to this data, including IT professionals, and detail whether they are federal employees, civilian or military, or contractors.

Significant Impact on Privacy

The letter states that the bulk collection and aggregation of phone records has a significant impact on Americans' privacy that exceeds the issues considered by the Supreme Court, which decided in a 1979 case that it was constitutional to record electronically without a warrant phone numbers called from a particular telephone line. The senators contend that decision was based on rotary-dial-era technology and did not address the type of continuing, broad surveillance of phone records that the government now conducts.

"These records can reveal personal relationships, family medical issues, political and religious affiliations and a variety of other private personal information," the letter says. "This is particularly true if these records are collected in a manner that includes cell phone location data, effectively turning Americans' cell phones into tracking devices. We are concerned that officials have told the press that the collection of this location data is currently authorized."

Concerns over the collection of communications data on Americans intensified last month when former NSA systems administrator Edward Snowden leaked information about two programs aimed at collecting threat information on foreigners [see NSA Outlines Steps to Reduce Leaks]. But some lawmakers, civilian libertarians and privacy advocates say data about innocent Americans is collected, too.

The Patriot Act, enacted in 2001 following the 9/11 terrorist attacks, significantly weakened restrictions on law enforcement agencies' gathering of intelligence with the United States.

Signing the letter were Ron Wyden, D-Ore.; Mark Udall, D-Colo.; Lisa Murkowski, R-Alaska; Patrick Leahy, D-Vt.; Mark Kirk, R-Ill.; Dick Durbin, D-Ill.; Tom Udall, D-N.M.; Brian Schatz, D-Hawaii; Jon Tester, D-Mont.; Jeanne Shaheen, D-N.H.; Dean Heller, R- Nev.; Mark Begich, D-Alaska; Bernie Sanders, I-Vt.; Patty Murray, D-Wash.; Jeff Merkley, D-Ore.; Mazie Hirono, D-Hawaii; Al Franken, D-Minn.; Tom Harkin, D-Iowa; Chris Coons, D-Del.; Maria Cantwell, D-Wash.; Richard Blumenthal, D-Conn.; Max Baucus, D-Mont.; Elizabeth Warren, D-Mass.; Martin Heinrich, D-N.M.; Tammy Baldwin, D-Wisc.; and Mike Lee, R-Utah.

About the Author

Eric Chabrow

Eric Chabrow

Retired Executive Editor, GovInfoSecurity

Chabrow, who retired at the end of 2017, hosted and produced the semi-weekly podcast ISMG Security Report and oversaw ISMG's GovInfoSecurity and InfoRiskToday. He's a veteran multimedia journalist who has covered information technology, government and business.

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