In my article Tuesday morning I talked about NSA lies and the lying spyers who tell them. As one might expect, many unresolved issues remain, thanks in large part to the public statements of intelligence officials. To wit: On June 18, NSA Director Keith Alexander flatly denied mining the telephony metadata his agency collects from Verizon and other major American telecoms. However, new reporting from the Wall Street Journal strongly implies that data mining is at the heart of the argument which originally justified mass collection.
Princeton University defines data mining as:
data processing using sophisticated data search capabilities and statistical algorithms to discover patterns and correlations in large preexisting databases; a way to discover new meaning in data
Alexander said pattern analysis in this vein would be impossible because a specific court order is required to access, and by implication interact with, a data entry. Purportedly there were fewer than 300 such queries against the database in 2012, but this only compounds the question of why the NSA collects the metadata of every American phone call.
Intelligence brass and their congressional allies point to the need for comprehensiveness and responsiveness given current technology. (They also claim the metadata are kept in a segregated archive, preventing cross-referencing with other databases.) Telecoms do not store metadata for long and each would have a different procedure for sharing it. By contrast, the NSA keeps it in a central location for five years before allegedly deleting it, the better to examine the history of any potential terror suspect.
But Monday’s Journal article weaves a different narrative.
The story begins in 2004, as the NSA’s post-9/11 expansion of domestic surveillance was coming under scrutiny. Resignation threats from current FBI nominee James Comey and other DoJ officials compelled the White House to shift warrantless mass-collection of telephone and Internet communications under the authority of the Foreign Intelligence Surveillance Court. Prior to this, the NSA had been conducting surveillance without any judicial oversight.
Soon after completing this transition in 2006, the government began arguing for a wider definition of the word “relevance” in Section 215 of the PATRIOT Act, which allows for the sharing of “business records” relevant to an ongoing investigation. It wanted to analyze entire populations of data for patterns that would reveal potential threats far earlier than traditional means. This desire to anticipate plots was a major legacy of 9/11 in the intelligence community. By May, the court was convinced, redefining what was “relevant” to an investigation. Now virtually any piece of intelligence could be considered “relevant,” at least in theory. Thus began the telephony metadata program revealed just over a month ago by the Verizon order.
Assuming all of this is correct, it appears General Alexander misrepresented the the truth when he denied that the NSA was mining telephony metadata. He might reply that he was using specific definitions of “data mining” and “query” which fall outside the scope of this discussion. As this Electronic Frontier Foundation page discusses, the NSA has a very specific definition of the term “collection” which is more akin to the common meaning of “analysis.” And as previously noted, it has also stretched the meaning of “relevance” such that virtually any piece of intelligence is germane to an investigation.
Does it matter whether General Alexander was being honest?
I would argue it does for the simple reason that intelligence officials routinely use opaque language, in their own statements and in the documents they cite, to deceive the public and evade its scrutiny. They are relying on our ignorance to invade our privacy while maintaining our trust. Given the new revelations about the program’s legal history, it appears Keith Alexander was simply lying.