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U.S. Intelligence Agencies’ Gathering of Information about Americans
Dennis Blair is a former U.S. director of national intelligence and a Freedom House board member. The views expressed here are his own.
There has been a great deal of concerned commentary in the media about American intelligence agencies gathering information on Americans. As a former director of national intelligence, I was directly involved in these issues, and can state unequivocally that the only conditions under which the national intelligence agencies gather any information about Americans—their phone calls, the records of phone calls they make (called “meta data”), their e-mails, the records of the e-mails they have written, their tweets, Facebook postings, or any other form of electronic communication—is when the court established by the Foreign Intelligence Surveillance Act (FISA) has given permission, based on a reasonable suspicion that the American is involved in terrorist activity.
Let me give a hypothetical example. Let’s assume that the police in another country have captured a member of a terrorist group that they suspect of plotting an attack in the United States, that they have also identified his cell phone, and have provided this information to U.S. intelligence agencies. The U.S. intelligence community, working through the Department of Justice, will go to the FISA court and request permission to determine whether this cell phone has made calls to anyone in the United States. If the FISA court is convinced that there is a reasonable suspicion of a threat to the United States, and grants permission, then the intelligence community will provide that number to the U.S. cell phone companies, which then must provide the numbers and owners of the numbers of any calls made to or from that foreign terrorist suspect’s cell phone. The FBI will then have the responsibility to investigate the owners of those numbers. If the FBI in its investigation designates an American as a suspect in the crime of plotting a terrorist attack, then it in turn must go to a judge for permission to obtain the suspect’s communications in future—in other words to “tap” the suspect’s communications.
This sequence of events is straightforward in theory, but in practice it is an enormous technical challenge, since the company records of the billions of communications Americans make every day are in different formats, stored for different purposes and in different places, and for different periods of time. In addition, the technology of communications is incredibly dynamic, with new forms being invented and old forms changing constantly. There are detailed, prolonged negotiations with the communications companies, under the supervision of the FISA court, to ensure that as the forms and records of communications change, only the information authorized by the court is made available to intelligence community analysts and the FBI. The FISA court judges, and I have met many of them, are tough and skeptical arbiters of the balance between security and civil liberties. Occasionally the intelligence agencies will make a mistake—an example is transposing digits when a phone number is entered into a program to search a database. When that happens, the FISA court is notified, and it approves the actions taken to destroy the data that have been incorrectly gathered, along with measures to prevent a recurrence of the mistake. These procedures I have described are authorized by legislation passed by Congress and signed by the president, and supervised by the select intelligence committees of both houses of Congress.
Freedom House is rightly concerned about authoritarian governments’ surveillance of their citizens’ communications for the purposes of repressing free speech, political discussion, and civil society advocacy. The system in the United States, based on the principle of limiting the gathering of intelligence on Americans by statute, by the decisions and supervision of an independent judiciary, and by an inquisitive and independent press, is a model for balancing the responsibility of a government to protect its citizens with their rights to privacy and liberty.
Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.