E-Mail Surveillance Renews Concerns in Congress

[Eugen Leitl]

http://www.nytimes.com/2009/06/17/us/17nsa.html?_r=2&hp=&pagewanted=print

June 17, 2009

E-Mail Surveillance Renews Concerns in Congress

By JAMES RISEN and ERIC LICHTBLAU

WASHINGTON b The National Security Agency is facing renewed scrutiny over the
extent of its domestic surveillance program, with critics in Congress saying
its recent intercepts of the private telephone calls and e-mail messages of
Americans are broader than previously acknowledged, current and former
officials said.

The agencybs monitoring of domestic e-mail messages, in particular, has posed
longstanding legal and logistical difficulties, the officials said.

Since April, when it was disclosed that the intercepts of some private
communications of Americans went beyond legal limits in late 2008 and early
2009, several Congressional committees have been investigating. Those
inquiries have led to concerns in Congress about the agencybs ability to
collect and read domestic e-mail messages of Americans on a widespread basis,
officials said. Supporting that conclusion is the account of a former N.S.A.
analyst who, in a series of interviews, described being trained in 2005 for a
program in which the agency routinely examined large volumes of Americansb
e-mail messages without court warrants. Two intelligence officials confirmed
that the program was still in operation.

Both the former analystbs account and the rising concern among some members
of Congress about the N.S.A.bs recent operation are raising fresh questions
about the spy agency.

Representative Rush Holt, Democrat of New Jersey and chairman of the House
Select Intelligence Oversight Panel, has been investigating the incidents and
said he had become increasingly troubled by the agencybs handling of domestic
communications.

In an interview, Mr. Holt disputed assertions by Justice Department and
national security officials that the overcollection was inadvertent.

bSome actions are so flagrant that they canbt be accidental,b Mr. Holt said.

Other Congressional officials raised similar concerns but would not agree to
be quoted for the record.

Mr. Holt added that few lawmakers could challenge the agencybs statements
because so few understood the technical complexities of its surveillance
operations. bThe people making the policy,b he said, bdonbt understand the
technicalities.b

The inquiries and analystbs account underscore how e-mail messages, more so
than telephone calls, have proved to be a particularly vexing problem for the
agency because of technological difficulties in distinguishing between e-mail
messages by foreigners and by Americans. A new law enacted by Congress last
year gave the N.S.A. greater legal leeway to collect the private
communications of Americans so long as it was done only as the incidental
byproduct of investigating individuals breasonably believedb to be overseas.

But after closed-door hearings by three Congressional panels, some lawmakers
are asking what the tolerable limits are for such incidental collection and
whether the privacy of Americans is being adequately protected.

bFor the Hill, the issue is a sense of scale, about how much domestic e-mail
collection is acceptable,b a former intelligence official said, speaking on
condition of anonymity because N.S.A. operations are classified. bItbs a
question of how many mistakes they can allow.b

While the extent of Congressional concerns about the N.S.A. has not been
shared publicly, such concerns are among national security issues that the
Obama administration has inherited from the Bush administration, including
the use of brutal interrogation tactics, the fate of the prison at GuantC!namo
Bay, Cuba, and whether to block the release of photographs and documents that
show abuse of detainees.

In each case, the administration has had to navigate the politics of
continuing an aggressive intelligence operation while placating supporters
who want an end to what they see as flagrant abuses of the Bush era.

The N.S.A. declined to comment for this article. Wendy Morigi, a spokeswoman
for Dennis C. Blair, the national intelligence director, said that because of
the complex nature of surveillance and the need to adhere to the rules of the
Foreign Intelligence Surveillance Court, the secret panel that oversees
surveillance operation, and bother relevant laws and procedures, technical or
inadvertent errors can occur.b

bWhen such errors are identified,b Ms. Morigi said, bthey are reported to the
appropriate officials, and corrective measures are taken.b

In April, the Obama administration said it had taken comprehensive steps to
bring the security agency into compliance with the law after a periodic
review turned up problems with bovercollectionb of domestic communications.
The Justice Department also said it had installed new safeguards.

Under the surveillance program, before the N.S.A. can target and monitor the
e-mail messages or telephone calls of Americans suspected of having links to
international terrorism, it must get permission from the Foreign Intelligence
Surveillance Court. Supporters of the agency say that in using computers to
sweep up millions of electronic messages, it is unavoidable that some
innocent discussions of Americans will be examined. Intelligence operators
are supposed to filter those out, but critics say the agency is not rigorous
enough in doing so.

The N.S.A. is believed to have gone beyond legal boundaries designed to
protect Americans in about 8 to 10 separate court orders issued by the
Foreign Intelligence Surveillance Court, according to three intelligence
officials who spoke anonymously because disclosing such information is
illegal. Because each court order could single out hundreds or even thousands
of phone numbers or e-mail addresses, the number of individual communications
that were improperly collected could number in the millions, officials said.
(It is not clear what portion of total court orders or communications that
would represent.)

bSay you get an order to monitor a block of 1,000 e-mail addresses at a big
corporation, and instead of just monitoring those, the N.S.A. also monitors
another block of 1,000 e-mail addresses at that corporation,b one senior
intelligence official said. bThat is the kind of problem they had.b

Overcollection on that scale could lead to a significant number of privacy
invasions of American citizens, officials acknowledge, setting off the
concerns among lawmakers and on the secret FISA court.

bThe court was not happyb when it learned of the overcollection, said an
administration official involved in the matter.

Defenders of the agency say it faces daunting obstacles in trying to avoid
the improper gathering or reading of Americansb e-mail as part of
counterterrorism efforts aimed at foreigners.

Several former intelligence officials said that e-mail traffic from all over
the world often flows through Internet service providers based in the United
States. And when the N.S.A. monitors a foreign e-mail address, it has no idea
when the person using that address will send messages to someone inside the
United States, the officials said.

The difficulty of distinguishing between e-mail messages involving foreigners
from those involving Americans was bone of the main things that droveb the
Bush administration to push for a more flexible law in 2008, said Kenneth L.
Wainstein, the homeland security adviser under President George W. Bush. That
measure, which also resolved the long controversy over N.S.A.bs program of
wiretapping without warrants by offering immunity to telecommunications
companies, tacitly acknowledged that some amount of Americansb e-mail would
inevitably be captured by the N.S.A.

But even before that, the agency appears to have tolerated significant
collection and examination of domestic e-mail messages without warrants,
according to the former analyst, who spoke only on condition of anonymity.

He said he and other analysts were trained to use a secret database,
code-named Pinwale, in 2005 that archived foreign and domestic e-mail
messages. He said Pinwale allowed N.S.A. analysts to read large volumes of
e-mail messages to and from Americans asconfirmed the existence of the
Pinwale e-mail database, but declined to provide further details.

The recent concerns about N.S.A.bs domestic e-mail collection follow years of
unresolved legal and operational concerns within the government over the
issue. Current and former officials now say that the tracing of vast amounts
of American e-mail traffic was at the heart of a crisis in 2004 at the
hospital bedside of John Ashcroft, then the attorney general, as top Justice
Department aides staged a near revolt over what they viewed as possibly
illegal aspects of the N.S.A.bs surveillance operations.

James Comey, then the deputy attorney general, and his aides were concerned
about the collection of bmeta-datab of American e-mail messages, which show
broad patterns of e-mail traffic by identifying who is e-mailing whom,
current and former officials say. Lawyers at the Justice Department believed
that the tracing of e-mail messages appeared to violate federal law.

bThe controversy was mostly about that issue,b said a former administration
official involved in the dispute.