The general counsel of the National Security Agency on Monday compared the agency’s telephone metadata collection program to the highly controversial “stop-and-frisk” practice used by law enforcement officers, saying the agency uses that same standard to choose which phone numbers to query in its database.
“It’s effectively the same standard as stop-and-frisk,” Rajesh De said in an attempt to explain the evidentiary use of “reasonable and articulable suspicion” to identify which phone numbers to target from the agency’s huge database of stored cellphone records.
De made the comment during a rare hearing of an obscure government body, the Privacy and Civil Liberties Oversight Board, which Congress created in 2004 to oversee the government’s expanded intelligence collection operations but which until Monday had never held a substantive hearing.
De’s comparison was perhaps unfortunate. Stop and frisk, after all, is the subject of its own string of controversies. A federal judge ruled in August that the New York City Police Department had used racial profiling in its stops and disproportionately targeted blacks and Latinos. Last month, a video of a Philadelphia police officer stopping and frisking a young black male went viral on YouTube. Complaints about stop and frisk have reached a crescendo among civil liberties groups. The American Civil Liberties Union recently said the practices “raise serious concerns over racial profiling, illegal stops and privacy rights.”
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Sensing that De may have opened a new door of debate, Robert Litt, the general counsel of the Office of the Director of National Intelligence, noted that the NSA’s dive into phone metadata, which includes numbers called and the length of calls, is “considerably less” intrusive than a physical search.
The comparison was the latest in questionable analogies that intelligence officials have used in an effort to explain the agency’s metadata collection programs since former defense contractor Edward Snowden revealed their existence in June.
Intelligence officials, for example, have said repeatedly that the collection of hundreds of millions of phone records allows them to build a haystack in which to find a needle, apparently missing the irony that “finding a needle in a haystack” is an expression meant to convey that a task is all but impossible.
On Monday, FBI general counsel Patrick Kelley eschewed that analogy as he tried to explain the need for collecting what amounts to trillions of phone records to the board, which is made up of four members and a chairman.
“Without the ability to look at all the data in a composite way, it’d be much harder, much slower and much more difficult for us to do (our job),” Kelley said. “We’d be less agile, less informed, less focused, and we think that as a result, we’d be a lot less effective in preventing the attacks that American people want us to prevent.”
Kelley didn’t offer a number for how many attacks the program has prevented, a point of contention between intelligence officials, who said last week that the NSA phone-records database had thwarted 13 planned terrorist attacks, and congressional critics of the program, who say that at best the database may have helped thwart a single attack.
De, when asked at Monday’s hearing, declined to provide a number, saying it wasn’t the correct way to judge the program.
The members of the board are: Patricia Wald, a former District of Columbia Court of Appeals judge; James Dempsey, the vice president for public policy at the Center for Democracy & Technology, a Washington-based nonprofit organization that advocates for Internet openness; Elisebeth Collins Cook, a former assistant U.S. attorney general; and Rachel Brand, who’s the chief regulatory counsel for the U.S. Chamber of Commerce.
The board’s chair is David Medine, a former attorney for the Securities and Exchange Commission.
Medine said Monday’s testimony, which lasted seven hours, would be used to craft a list of recommendations on changes to the NSA’s programs that would be submitted to the White House and Congress. He didn’t give a deadline for submitting the recommendations.