Posted by Orin Kerr:
What's the Other NSA Program?:
http://volokh.com/archives/archive_2006_02_12-2006_02_18.shtml#1140025722
The [1]United Press International reports that former NSA employee
Russell Tice, who has been in the news recently as one of the leakers
of the NSA surveillance program, is now saying that there is another
"more wide-ranging program" beyond the one disclosed by the New York
Times in December:
A former NSA employee said Tuesday there is another ongoing
top-secret surveillance program that might have violated millions
of Americans' Constitutional rights.
Russell D. Tice told the House Government Reform Subcommittee on
National Security, Emerging Threats and International Relations he
has concerns about a "special access" electronic surveillance
program that he characterized as far more wide-ranging than the
warrentless [sic] wiretapping recently exposed by the New York
Times but he is forbidden from discussing the program with
Congress.
Tice said he believes it violates the Constitution's protection
against unlawful search and seizures but has no way of sharing the
information without breaking classification laws. He is not even
allowed to tell the congressional intelligence committees - members
or their staff - because they lack high enough clearance.
This disclosure is consistent with [2]Attorney General Gonzales's
strong hint before the Senate Judiciary Committee that there are other
telecommunications surveillance programs beyond the one disclosed by
the Times.
This prompts the question: What's the other program? No one knows,
of course, but my speculation is that it involves domestic
surveillance of non-content information relating to telephone calls
and e-mails. This is what crim law people know of as "pen register"
information, also known as "envelope" information or "metadata" -- the
who and when of communications without the what. Such information
would include the "to" and "from" e-mail addresses of e-mails without
the actual message, or the numbers dialed on a telephone call without
the contents of the call itself.
My speculation is drawing from three sources of information. First,
the privacy laws protecting non-content information are much weaker
than the laws for content information. As a result, there are a few
arguments for why the government can legally monitor non-content
information on a very wide scale. If those arguments are plausible, it
seems quite likely (given what we know of the legal strategy behind
the known NSA program) that they would receive serious attention
within the Administration. Second, the known NSA program seems to be
focused primarily on the contents of communications, while useful
traffic analysis can be done on non-content data. Third, a Washington
Post story a while ago had [3]this very intriguing hint:
Even for U.S. communications, the law was less than clear about
whether the NSA could harvest information about that communication
that was not part of its "contents."
"We debated a lot of issues involving the 'metadata,' " one
government lawyer said. Valuable for analyzing calling patterns,
the metadata for telephone calls identify their origin,
destination, duration and time. E-mail headers carry much the same
information, along with the numeric address of each network switch
through which a message has passed.
Intelligence lawyers said FISA plainly requires a warrant if the
government wants real-time access to that information for any one
person at a time. But the FISA court, as some lawyers saw it, had
no explicit jurisdiction over wholesale collection of records that
do not include the content of communications. One high-ranking
intelligence official who argued for a more cautious approach said
he found himself pushed aside. Awkward silences began to intrude on
meetings that discussed the evolving rules.
"I became aware at some point of things I was not being told
about," the intelligence official said.
The Post story is vague, and it's hard to know if it means anything.
But if Tice is right that there is another program that is "more
wide-ranging" than the one we know, I wouldn't be surprised if it
involves domestic surveillance of telephone and Internet envelope
information.
References
1.
http://www.upi.com/SecurityTerrorism/view.php?StoryID=20060214-053955-9494r
2. http://volokh.com/posts/1139267728.shtml
3.
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/04/AR2006020401373_3.html
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
