The staff director of the Senate Intelligence Committee issued a statement late Wednesday denying that the National Security Agency gathers information on where Americans are when they use their cell phones hours after the committee’s chair, Sen. Dianne Feinstein, appeared to confirm that it did.
“The NSA does not collect locational information on Americans or non-Americans inside the United States without a court order. No other agency in the Intelligence Community does so either," David Grannis said in an email to McClatchy.
Grannis’s statement seemed to go beyond what NSA director Gen. Keith Alexander has been willing to say in public in response to questions about the NSA’s collection of such information. On Wednesday, Alexander read a statement to the Senate Judiciary Committee in which he said the NSA did not collect locational data “under Section 215 of the USA Patriot Act,” a reference to a controversial program that requires cellphone companies to report daily to the NSA information about the cellphone usage of million of Americans, including the numbers they call and the length of time they talk.
Grannis, however, said the denial included all intelligence agencies.
Grannis said that Feinstein, D-Calif., had been speaking “extemporaneously” when she mistakenly said that “location” was among the information NSA collected.
“I’ve listened to this program being described as a surveillance program. It is not,” Feinstein said during a hearing into the NSA programs by the Senate Judiciary Committee, of which she is also a member. “There is no content collected by the NSA. There are bits of data – location, telephone numbers – that can be queried when there is reasonable and articulable suspicion.”
Grannis confirmed that the quote was correct. But he said the comment was in error and that Feinstein’s staff had attempted to clarify it with a note on a transcript they posted on Feinstein’s Senate website. Feinstein’s staff, however, did not respond to requests for clarification until after a McClatchy story highlighting the comment was published.
No comment was issued in Feinstein’s name regarding the statement.
Feinstein has been an ardent defender of the NSA’s data collection programs since they were first revealed in June by former NSA contractor Edward Snowden.
Whether the United States is collecting so-called location data has become a contentious issue in the debate over the NSA’s programs. Some privacy advocates claim such information is far more useful to tracking an individual’s activities than listening in on conversations, because the phone’s location is recorded even when it is not in use.
Only last week, locational data was the topic of a tense exchange between NSA director Keith Alexander and Sen. Ron Wyden, D-Ore., during an Intelligence Committee hearing that Feinstein chaired.
Alexander was careful to restrict his answer to programs authorized under Section 215 of the USA Patriot Act. When Wyden, a critic of the NSA, persisted, Alexander read a prepared statement in which he declined to answer in open session.
“Respectfully, I’m asking, has the NSA ever collected or ever made any plans to collect Americans’ cell-site information. That was the question and we, respectfully, General, have still not gotten an answer to it,” Wyden said. “Could you give me an answer to that?”
Alexander continued reading the statement.
“General, if you’re responding to my question by not answering it because you think that’s a classified matter that is certainly your right,” Wyden replied. “We will continue to explore that because I believe this is something the American people have a right to know, whether the NSA has ever collected or made plans to collect cell-site information.”
Wyden has used public Intelligence Committee hearings before to draw attention to matters that he has learned about in closed sessions. He famously asked Director of National Intelligence James Clapper in March whether the agency was collecting data on “millions of Americans.” Clapper answered “no” – an answer that was later shown to be untrue.
At Wednesday’s judiciary hearing, Alexander again read a statement denying that NSA was collecting location data under the Patriot Act.
But he acknowledged for the first time that the NSA had experimented with such data in 2010 to 2011 “in order to test the ability of its systems to handle the data format.”
“That data was not used for any other purpose and was never available for intelligence analysis purposes,” Alexander said, reading from a prepared text. He added that the NSA had promised in a June 25, 2013, closed Intelligence Committee hearing that no locational data would be collected without Congress being notified and that the Foreign Intelligence Surveillance Court had said in its most recent ruling on the Section 215 program that the government would need court permission to collect such data.
Revelations by Snowden that the NSA collects vast amounts of information under two sections of law, Section 215 of the Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act, have focused attention primarily on those programs.
But it’s become clear that many intelligence activities are governed by neither Sections 215 or 702. Feinstein last week said she had ordered a review of all programs operating under a presidential directive, Executive Order 12333, which was last amended in 2008.
“Although there has been substantial attention paid to FISA, other intelligence collection programs outside of FISA function under the guidelines of Executive Order 12333, which do not mandate the same protections for U.S. person privacy and oversight as does FISA,” Feinstein said.
Alexander made clear Wednesday that the NSA is careful to separate programs authorized under Sections 215 and 702 and those authorized under Executive Order 12333.
When asked during the Judiciary Committee meeting about 12 incidents in which NSA employees had used electronic data the agency had gathered to spy on love interests, Alexander denied the violations occurred under the hotly contested programs.
“All of those were under Executive Order 12333,” he said. “None under 215 or 702.”