Pincus: Focus on facts, not fear, in the NSA debate

A sign stands outside the National Security Administration A sign stands outside the National Security Administration campus in Fort Meade, Md. (June 6, 2013) Photo Credit: AP

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But let's deal with facts about the programs as they operate, not only with the potential dangers they may pose.

That's not how it's gone so far.

Take the debate last week in the House of Representatives before votes on NSA programs.

Note that I said votes. There were two, though only one - to end funding of the massive collection of Americans' phone toll records - seems to have drawn media attention, and thus the public's eye.

One misperception emerging from Snowden's disclosures is the result of mixing two NSA collections programs. Many have been led to believe that the contents of every American's phone calls, e-mails, video clips and Skype chats are being stored somewhere by the government, where NSA employees can review them at will.

The House debate did little to clear that up.

One NSA program, known as 702 for its section in the Foreign Intelligence Surveillance Act - as amended in 2012 - permits the NSA to gather electronic communications such as e-mails and phone conversations. But that's only after approval by a federal judge serving on the Foreign Intelligence Surveillance Court (FISC) that the NSA's target is not a U.S. citizen or someone in the United States and that there is an appropriate, documented foreign intelligence purpose for the collection, such as terrorism or nonproliferation.




The second program, known for its section in the law as 215, permits the bulk gathering of business records if there are "reasonable grounds to believe" the records are relevant to a terrorist probe, though it's understood most of the data collected are not associated with such activity.




These are complex subjects, but last week the House allocated all of 15 minutes for debate on the two NSA amendments, 7 1/2 minutes each for those in support or opposed.

Reps. Justin Amash, R-Mich., and John Conyers Jr., D-Mich., introduced an amendment to the fiscal 2014 defense appropriations bill to strike all funding for the 215 program.

Before it came up, however, the House debated the other NSA amendment. Brought forward by two lesser-known House members, Reps. Richard B. Nugent, R-Fla., and Mike Pompeo, R-Kan., the measure made illegal the targeting of Americans under 702 or collecting phone conversations under 215.

Pompeo said one of his purposes was to make clear under 215 that "no record of the actual conversation or the contents thereof may be recorded or collected by the National Security Agency." Rep. Jerrold Nadler, D-N.Y., who voted for the Pompeo measure as well as the defunding of 215, used much of his 90 seconds to say the collected phone metadata "reveals highly personal and sensitive information including, for example, when and how often one calls the doctor, a journalist, or the local tea party or ACLU affiliate." He said, "By tracing the pattern of calls, the government can paint a detailed picture of anyone's personal, professional and political associations and activities." Nadler said, "Congress never authorized this type of unchecked, sweeping surveillance of our citizens," and he was correct.

But that's not going on, at least not by NSA analysts, under the 215 program.

Left unexplored was who was authorized to search NSA 702 archives, where content is also held for five years. When Snowden and others have talked of NSA employees being able to call up conversations, are they talking about 702 archives? Another example of how last week's debate didn't help clear up misperceptions: Amash began his few minutes saying in part that opponents "will tell you there is no expectation of privacy in documents that are stored with a third party. Tell that to the American people. Tell that to our constituents back home." Amash didn't say that is the law - upheld by the Supreme Court in a 1979 opinion. The court said a U.S. phone owner has no expectation of privacy for his or her phone toll records, which the companies maintain for billing and other purposes.

The House intelligence chairman, Rep. Mike Rogers, R-Mich., used his time to defend the 215 program. Nonetheless he pledged that this fall he "would work to find additional privacy protections with this program" to attach to the fiscal 2014 intelligence authorization bill.

He said 702 and 215 had 54 times "stopped and thwarted terrorist attacks both here and in Europe - saving real lives. This isn't a game. This is real. . . . This is hard." The Pompeo amendment passed 409 to 2. We all know Amash-Conyers failed, 217 to 205.


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