The National Security Agency on Friday released its first transparency report under the U.S.A. Freedom Act surveillance reform bill, and reported it’s meeting the privacy standards set down by Congress in the execution of the agency’s new telephone metadata surveillance program.
“NSA’s goal under the U.S.A. Freedom Act remains the same as that under its predecessor program: to collect, analyze, and disseminate foreign intelligence information about international terrorist threats,” the agency said of the bulk collection program that expired last November, under which the NSA collected, stored and searched the landline phone records of virtually all Americans, including dialed numbers, call durations and locations.
“The government has strengthened privacy safeguards by, among other things, ending the collection of telephone metadata in bulk and having telecommunications providers, pursuant to court orders, hold and query the data,” the agency said.
Friday’s report, compiled by the signals intelligence agency’s Civil Liberties and Privacy Office, examined the agency’s compliance with eight “fair information practice principles,” including purpose specification, data minimization, use limitation, data quality and integrity, security, accountability and auditing, transparency and individual participation.
The agency’s “privacy and civil liberties analysis” concluded the agency was requesting and handling data appropriately in the former six categories, many of which were detailed in the Freedom Act itself.
In regard to the agency’s transparency and individual participation principles, which states NSA should “notify individuals regarding collection, use, dissemination, and maintenance of personally identifiable information,” the agency concluded the public debate that preceded the passage of the Freedom Act satisfied the requirement, and that notifying individuals they’re being surveilled and seeking their consent undermines the agency’s mission.
“NSA does not release information that would reveal the identities of the specific individuals whose CDRs [call detail records]
are targeted for collection pursuant to the U.S.A. Freedom Act,” the report states. “Frequently, the very fact that the government suspects that a particular person is engaged in international terrorism or that a particular phone number is being used by such a person must be kept secret in the interests of national security.”
The fact the agency is only collecting call details records and not the content of calls further satisfies the requirement, according to NSA.
In an op-ed last week NSA General Counsel Glenn Gerstell described the new process NSA uses to acquire those records.
“The FBI (on behalf of NSA) can apply to the FISA Court for specific authority to inquire about a particular phone number or other identifying element, but only if based on a ‘reasonable, articulable suspicion’ that it is associated with international terrorism,” Gerstell wrote.
“The phone company will reply with a list of numbers, if any, that the first number was in contact with,” he explained. “NSA is then permitted to perform a similar inquiry on the secondary numbers — but cannot further investigate the results of the second inquiry to see subsequent levels of contact.”
While the new framework contains many of the privacy recommendations called for by lawmakers and the White House, privacy and civil liberties advocates argue the gaping hole in the system lies with the court approval process. The new system — just as the old — requires the agency to get a court order for data from the Foreign Intelligence Surveillance Court.
The judicial body has been described as a “rubber stamp” for intelligence and law enforcement agencies, approving surveillance requests in secret and en masse, rejecting just 11 of 33,900 surveillance requests between 1979 and 2012.
Friday’s report states The Office of the Director of National Intelligence will publish the number of targets under each order, the number of records turned over to NSA by the telephone companies, and the number of times a U.S. citizen’s data was used in a search in a forthcoming transparency report.
The new framework has been at the center of a debate between GOP presidential rivals Sens. Marco Rubio of Florida and Ted Cruz of Texas. Rubio has accused Cruz of weakening U.S. national security by voting in favor of the Freedom Act, while Cruz has maintained his vote protected American’s civil liberties while expanding the scope of NSA surveillance to include wireless records.
NSA’s general counsel said the same last week.
“Largely overlooked in the debate that has ensued in the wake of recent attacks is the fact that under the new arrangement, our national security professionals will have access to a greater volume of call records subject to query in a way that is consistent with our regard for civil liberties,” Gerstell wrote.