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NSA Surveillance Proponent Unsure if Program Will Continue

Feb. 12, 2014 - 03:45AM   |  
By JOHN T. BENNETT   |   Comments
The continuation of bulk data collection by the US National Security Agency remains unsettled. (AFP/Getty Images)
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WASHINGTON — A vocal proponent among US Senate liberals for controversial National Security Agency (NSA) surveillance efforts says the program could be shut down, and experts are unsure how many Americans’ phone numbers have been gathered.

Senate Judiciary Committee member Sen. Al Franken of Minnesota, one of the few proponents of the NSA data-collection programs among Democratic progressives, said Wednesday he is “not assuming” that lawmakers will opt to “keep the bulk collection.”

The Pentagon’s NSA has been in the midst of a firestorm for months since former Booz Allen contractor Edward Snowden revealed the agency was gathering and searching data on Americans’ telephone calls and emails as part of anti-terrorism efforts.

President Obama last month announced some modest changes to the programs, but he tossed a final decision about the proper way to store and search electronic metadata to the Justice Department, intelligence community and Congress.

In a landmark January speech, the commander in chief said intelligence community officials and Attorney General Eric Holder will design a new method for collecting and storing electronic metadata, which Congress must then approve .

The intelligence community and Holder must report back to Obama by March 28 with the details of their new bulk-metadata program, the date the surveillance programs must be reauthorized by lawmakers.

During a Judiciary subcommittee hearing examining a report on NSA spying compiled by a group of experts, Franken and other senators expressed concerns about the programs’ legality and permissibility.

Members of the expert board, all with extensive legal backgrounds, assured the Senate subcommittee the programs are constitutional. But several of them said it is less clear whether they are fully compliant with existing laws used by the Obama administration to justify them.

Board member Rachel Brand, chief counsel for regulatory litigation for the litigation arm of the US Chamber of Commerce, said the metadata program “is legal.” Elisebeth Cook, a counsel in the Litigation/Controversy and Regulatory and Government Affairs departments in the Washington office of Wilmer Hale, citing existing laws, called it “authorized.”

Privacy and Civil Liberties Oversight Board members discussed their review of the program, which was wrapped up in a report that called for the bulk-collection of Americans’ telephone calls and emails to be shut down.

“Bulk telephone records program lacks a viable legal foundation [and] implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value,” the board wrote in its Jan. 24 report. “As a result, the board recommends that the government end the program.”

Several senators painted the report’s findings as portraying the NSA program as illegal. Brand responded by saying the wording was deliberate, aimed at keeping morale high among intel community members.

She said that describing the programs rank-and-file intel workers were instructed to operate as “illegal” would have sent a “demoralizing” message.

Instead, the board members settled on language urging the end of the program because, she said, “you want your intelligence community aggressively pursuing” national security goals.

It remains unclear whether Congress will approve whatever the attorney general and intel community proposes.

James Dempsey, vice president for Public Policy at the Center for Democracy & Technology, said he senses a “split” between Internet companies and phone companies on how they want to proceed with the collection program and how to search that data.

That could complicate things and lead lawmakers to end the program, several senators hinted Wednesday.

Franken pressed the experts for even an estimate on just how many Americans’ email and phone data has been gobbled up and then collected. The board members could not say. ■


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