The Curious Section 126 of the Patriot Act
http://blogs.washingtonpost.com/earlywarning/2005/12/the_curious_sec.html

What is it that the National Security Agency began doing after 9/11 that
necessitated Presidential authorization for warantless surveillance?

We have all learned in the past week that the Foreign Intelligence and
Surveillance Act of 1978 contains provisions that allow the government to
conduct quick reaction surveillance of an individual and go to the court
afterwards for a warrant.

So what would the NSA need to do that isn't covered by the provisions of
FISA?

My guess is the government decided after 9/11 to monitor everyone.

Thanks JMC for pointing out that the USA PATRIOT Improvement and
Reauthorization Act Of 2005 contains a Section 126, inserted by the House,
requiring the Attorney General to submit a report to Congress "on any
initiative of the Department of Justice that uses or is intended to develop
pattern-based data-mining technology."

Data-mining is defined in Section 126 as:

"a query or search or other analysis of one or more electronic databases,
where--

(A) at least one of the databases was obtained from or remains under the
control of a non-Federal entity, or the information was acquired initially
by another department or agency of the Federal Government for purposes other
than intelligence or law enforcement;

(B) the search does not use personal identifiers of a specific individual or
does not utilize inputs that appear on their face to identify or be
associated with a specified individual to acquire information; and

(C) a department or agency of the Federal Government is conducting the query
or search or other analysis to find a pattern indicating terrorist or other
criminal activity.

In English?

Congress is seeking assurances that "the privacy and due process rights of
individuals" is protected in the course of the government using massive
databases of non-publicly available data; both proprietary databases and its
own compiled intelligence and law enforcement databases to "search" for
terrorists and terrorist connections.

In this program, the subject of monitoring is not one individual but
everyone. Pattern-based data-mining is used to find links that might
indicate terrorist activity.

Patterns of activity associated with actual terrorists in the past are
derived from investigations and debriefings -- let's say, for example, visas
from certain countries, calls from public phone booths to Pakistan, renting
of cars with newly acquired driver's licenses, one-way airline tickets.
Patterns are used to trigger "tip-offs."

Massive amounts of collected data -- actual intercepts of phone calls,
e-mails, etc. -- together with "transaction" data -- travel or credit card
records or telephone or Internet service provider logs -- are mixed through
a mind-boggling array of government and private sector software programs to
look for potential matches.

In discussing the "Able Danger" program, I previously described how
information targeters began data mining in the 1990's to discover new
patterns of indicators to identify events of interest when they could not be
directly observed.  The theory is that data mining techniques applied to the
intelligence take, combined with massive "transaction" databases, can
uncover clandestine relationships or activities.

In Section B above, when the law says "the search does not use personal
identifiers of a specific individual or does not utilize inputs that appear
on their face to identify or be associated with a specified individual to
acquire information," I take it to mean the new computer-based data mining
isn't looking for an individual per se, it is looking at information about
all individuals (at least all who make international telephone calls or send
e-mails overseas or travel to foreign countries according to the government)
to select individuals who may be worthy of a closer look.

In other words, with the digitization of everything and new computer and
software capabilities, the government couldn't go to the Court or the
Congress and say, "hey, we'd like to monitor everyone on a fishing
expedition to find the next Mohamed Atta."

It's one conceivable explanation. If this in fact is what the NSA has been
doing since 9/11, perhaps Congress should figure out: one, whether it's
legal; and two, how it can be done consistent with the Privacy Act and the
Fourth Amendment.

Merry Christmas. Happy Hannukah to all. See you for a further installment on
Tuesday.



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