NSA Denied Collecting Data on Americans

In a Guardian article revealing yet another way the NSA is spying on us without warrants (their third such revelation in three days), we find this very interesting exchange from March, a few weeks before the court order that was leaked to the Guardian about the Verizon metadata seizures:

At a hearing of the Senate intelligence committee In March this year, Democratic senator Ron Wyden asked James Clapper, the director of national intelligence: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

“No sir,” replied Clapper.

Judith Emmel, an NSA spokeswoman, told the Guardian in a response to the latest disclosures: “NSA has consistently reported – including to Congress – that we do not have the ability to determine with certainty the identity or location of all communicants within a given communication. That remains the case.”

But according to members of the Senate Intelligence Committee, this program has been going for seven years and the court order was just the most recent reauthorization of the program:

Sen. Saxby Chambliss, R-Ga., echoed Feinstein, saying the court-approved phone records collection has been standard procedure and that lawmakers are briefed on the program.

“This is nothing particularly new,” he said. “This has been going on for seven years under the auspices of the FISA authority, and every member of the United States Senate has been advised of this.”

So either they are lying or the NSA was lying. It would be a lot easier to take their “just trust us” arguments seriously if they hadn’t been caught lying so often.

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  • Was Clapper under oath when he made that statement?

  • dingojack

    Oh that makes us non-Americans feel just so much safer.

    Can you think of any reason that anyone would actively want to help you in case of terrorist attack?

    Burn baby burn!


  • Michael Heath

    Jeffrey Toobin’s primary premises* causing him to advocate that Snowden should be prosecuted rings pretty hollow when the courts, Congress, and the Administration are the biggest violators of the 4th, 5th, and 8th Amendments. Amplified by their illegally refusing to prosecute those who tortured (Bush, Cheney) or prosecute those who refuse to prosecute those who tortured (Obama, Holder).

    The government has lost its moral authority on these matters; so I think Toobin’s premises are largely irrrelevant. Therefore I’m trying to evaluate the net harm/benefit of such leaks where I find an awful lot of benefit from this particular leaker. Some patience is required to understand the fall-out on the harm done.

    *Toobin’s argument is two-fold: Snowden has avenues to be a whistle-blower, he didn’t need to go the media. And secondly, what he did was against the law. Toobin disingenuously avoids dealing with these programs’ constitutional violations or the fact all three branches are not to be trusted when it comes to upholding the Constitution or creating policy that is constitutional.

    Our government’s loss of moral authority given how conservative Christians in the south treated black people was a primary reason FDR wasn’t as aggressive vilifying the Nazis in the early-1930s when they took over Germany. There is blowback when people do the wrong thing. We should expect some in our future as well.

  • Ryan Jean

    It wasn’t lying, just highly misleading because of differing definitions.

    In intelligence operations, “collection” and “collecting” have very specific definitions that relate to the activities involved in originally gathering the data or, alternatively, the activities involved in assessing its intelligence value and working it into intelligence products. Under these definitions, data handed over from a third party — whether another gov’t agency, a foreign gov’t, a corporation, or a private individual — is not technically considered “collected” until it is acted upon in certain ways, because the US didn’t do the original gathering activity.

    As long as the data is stored in an aggregate form and never looked at by anything other than indexing algorithms, some in the intelligence community claim that it has never actually been “collected” per the definition, and thus isn’t required to be vetted for determinations over retention or dissemination policies either. That means, for example, that they don’t have to purge US citizen data (because it hasn’t been isolated as such) and can claim they never collected any either. By using the indexing to find only the related pieces they’re looking for at the time and not consider the rest of the data, only those already known to have relevance to the investigation or intelligence operation become “collected” (at the time they are singled out in a search) and thus fall within other requirements, but because they’re already known to be relevant by that point, they are eligible for retention and dissemination even if they have US citizen data.

    Many more conscientious individuals in the intelligence community, however, hold that data received must be judiciously evaluated for relevance or automatically become considered “collected” with a default assumption of not retaining, and that failing to do so is inherently failing to protect the constitutional rights of US citizens.

    Sources: E.O. 12333 (as amended); DoD Directive 5240.1-R & DoD Manual 5240.01-M; AR 381-10

  • Wait, I’m confused here. Obama is defending spying programs conducted by agencies that are still insisting that they never happened? Meaning that either the NSA is lying, or Obama has outed national security secrets and should be persecuted prosecuted as a result.

    I’m having trouble following this opera. Anyone have a spare program?

  • =8)-DX

    @Ryan Jean

    Interesting read, Jean. But it does sound a lot like the government would be then ok to institute other broad intelligence gathering techniques (mandating laptop and phone webcamera producers to install hardware back-doors and collect image data, which the US would then not have actually “collected” until it is needed).