Intelligence Community Lawyers Argue That Curbing Metadata Collections Will Damage Americans' Privacy

from the fox-claims-removal-of-henhouse-guardianship-will-result-in-'increased'-h dept

The NSA's bulk record collections is facing plenty of legislative opposition as a result of Snowden's leaks. Its own carelessness and abuse nearly cost the agency its metadata collections back in 2009 and it's apparently unwilling to consider any limitations being placed on this program going forward. Dianne Feinstein has pitched in with an attempt to codify the collection into law, something that will make it a bit more politically unassailable, but in the meantime, multiple pieces of legislation have been introduced to control the NSA's metadata dragnet.

This has prompted a variety of defensive tactics, from Feinstein op-eds to repeated assertions that the collection could have prevented the 9/11 attacks to cringe-inducing public relations videos featuring a slightly-unbuttoned General Alexander. The ODNI's General Counsel, Robert Litt, offered his own defense of the program while speaking to the PCLOB (Privacy and Civil Liberties Oversight Board). According to Litt, the suggested reforms would harm the very people they're intended to protect.

The NSA has previously argued that it was allowed by section 215 of the Patriot Act to store millions of phone records of Americans in order to find potential terrorists and their connections inside the United States. A court found that NSA could hold onto the data on the grounds that it was relevant to terrorism inquiries. In theory, storing the data with the companies, instead of at the NSA, would allow the telcos to serve as a kind of privacy watchdog. They'd be in a position to examine the government's requests for information about their customers and possibly to object to them in court.

But the intelligence lawyers warned that Americans' would be subject to even greater privacy incursions if their personal information were stripped from NSA's control.

You heard the man. Allowing telcos to store the collections onsite would cause greater harm to Americans' privacy than allowing the NSA to store them in its databases where it can peruse them at its leisure. Putting telcos in control would mean additional legwork for the NSA, mainly because it would be limited to obtaining data actually relevant to its investigations, rather than just grabbing it all and hoping everything collected becomes "relevant" at an undetermined point in the future.

This would seem to give Americans a bit more privacy protection, but the ODNI doesn't see it that way. The FBI's general counsel backed up Litt's theory with some speculation of his own.

Patrick Kelley, the acting general counsel of the FBI, said the phone company data could be made available to "other levels of law enforcement enforcement from local, state and federal who want it for whatever law enforcement purposes they're authorized to obtain it." He also raised a frightening prospect: "Civil litigation could also seek to obtain it for such things as relatively mundane as divorce actions," he said. "Who's calling who with your spouse ... So if the data is kept only by the companies than I think the privacy considerations certainly warrants scrutiny."

If Kelley believes this sort of scary "data sharing" would only be a possibility if telcos control the databases, then he's obviously been ignoring the developments of the last few months. Not only does the NSA share data with agencies like the DEA, but it also encourages them to falsify how they acquired the information. So, this privacy "concern" of Kelley's is already a reality -- and all the more reason to limit access to collected metadata. And that doesn't even touch the amount of data sharing it does with foreign countries, often in unminimized form. Furthermore, law enforcement can already access phone records as they're covered by the Third Party Doctrine, the same doctrine both the NSA and the FBI have been taking advantage of for years.

Second, even if it would increase the amount of civil litigation, that still would offer greater overall protection for Americans' phone data. How? Very simply. Litigation is targeted and data requests would be limited to those authorized by discovery. As it stands now, the NSA gets everything and is only limited by controls the NSA itself implements -- and those internal checks on abuse are only as strong as the NSA's statements to the FISA court claim they are.

And this fear of unfaithful partners' phone records being "outed" by litigants is easily mitigated, as FP's John Hudson points out.

Any act of Congress modifying the phone records database could include provisions prohibiting the use of telephone metadata for purposes not related to national security. And if lawmakers wanted to keep the information out of the hands of local police or civil attorneys, they could write a provision preserving its exclusive use by the NSA and the intelligence agencies.

This faux concern for the privacy of Americans is just another intelligence community dodge. Protecting privacy is only a concern when it's politically advantageous or can be twisted into a defense of embattled collection programs. Litt and Kelley's arguments are completely weightless. Worse, they both seem entirely unaware of the fact that recent revelations completely undercut their arguments. And yet, they approach an oversight board presumably familiar with these facts and make the arguments anyway.

This is just more evidence that the intelligence community is insular and self-absorbed, the result of many, many years of operating in complete secrecy. Its spokesmen and legal reps seem to be aware of nothing more recent than the latest talking points. These agencies are ultimately disinterested in protecting the privacy of Americans if it means scaling back their existing programs. Since they can't have it both ways (protect privacy, keep programs intact), they will always opt for the latter.

Filed Under: metadata, nsa, nsa surveillance, odni, patrick kelley, privacy, robert litt