Nobody wants to have to choose between privacy and security, but in the information age, it is difficult for the two to live side by side without conflict. It is a sad and perhaps perpetual truth that the United States has enemies, and that given the opportunity these enemies would use extraordinary measures to cause harm to Americans. It is the onus, then, of those tasked with the defense of the nation to deny enemies of the U.S. any such opportunity. The ongoing challenge is to figure out how.
It has become painfully apparent to both the American people and the world that the U.S. Department of Defense, under whose umbrella the National Security Agency falls, has been engaged in what many consider extreme security measures whose cost (real or perceived) has been privacy. In June, the now infamous Edward Snowden, a former analyst at the NSA, brought to light clandestine mass surveillance programs in the U.S. and United Kingdom.
“The recent unauthorized disclosures have led to a public dialogue about intelligence collection activities, particularly those conducted under the Foreign Intelligence Surveillance Act,” said Robert Litt, General Counsel in the Office of the Director of National Intelligence (ODNI), in a November 13 testimony before the Senate Judiciary Committee. ”Dialogue” is putting it lightly.
“But it is critical to ensure that that public dialogue is grounded in fact rather than in misconceptions,” continued Litt, “and therefore, we agree that it’s important to help the public understand how the intelligence community uses the legal authorities that Congress has provided it to gather foreign intelligence, and the vigorous oversight of those activities to ensure that they comply with the law.”
It is in this spirit that, several months ago, President Barack Obama directed the intelligence community to “make as much information as possible about certain intelligence programs that were the subject of those unauthorized disclosures available to the public, consistent with the need to protect national security and sensitive sources and methods.” These disclosures have been piling up since then, with a fresh round of documents released on November 18 by Director of National Intelligence James Clapper.
The government’s authority to monitor digital communications and collect information was broadly born out of the Foreign Intelligence Surveillance Act of 1978, “An Act to authorize electronic surveillance to obtain foreign intelligence information.” Ostensibly, the NSA began its trek toward the “dark side” in the wake of 9/11. With terrorism at the forefront of the national psyche, greater demands for more and better intelligence was placed on defense agencies, and in particular, the NSA. PRISM itself is more directly a product of the FISA Amendments Act of 2008.
One of the documents released on November 18 is an 87-page opinion signed by Colleen Kollar-Kotelly, who was then the presiding judge of the U.S. Foreign Intelligence Surveillance Court. The FISC was established by FISA and handles the government’s requests for the warrants it must acquire in order to conduct electronic surveillance within the U.S. The court has handled about 1,700 requests per year since September 11, 2001, and has denied only 10 of them from that period.
The document appears to be a justification for the NSA’s collection of “information regarding e-mail and certain other forms of Internet communications under the pen register and trap and trace provisions” of FISA. Here’s how the terms were defined in the opinion:
Using these methods, the court deemed it acceptable to collect massive amounts of information. Judge Kollar-Kotelly argued that the analysts “know that terrorists’ e-mails are located somewhere in the billions of data bits; what they cannot know ahead of time is exactly where.” Litt said in his prepared testimony that, ”These documents demonstrate that these programs are all authorized by law and subject to vigorous oversight by all three branches of government.”