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On Friday, as President Obama gave a press conference announcing his willingness to consider reforms to the National Security Agency’s bulk-collection programs, his administration released two unclassified “white papers” that Obama hailed as steps at transparency. One was a legal analysis of the bulk phone records program; the other was a generic description of the NSA’s foreign-directed surveillance activities.

Neither document provided much in the way of new information for the programs: a significant amount of the legal analysis about the bulk phone records program echoed congressional testimony by NSA and Justice Department officials, especially a lengthy July speech from Robert S Litt, the top lawyer in the intelligence community. Nor was either document a dispassionate recitation of facts: both presented the administration’s case for why Americans should be “comfortable” – as Obama put it today – with bulk collection of their data.

Still, the documents shed light on controversial legal theories that are likely to be tested in court in the weeks and months ahead.

The Obama administration justifies the bulk phone records collection program under Section 215 of the Patriot Act, which authorizes the government to acquire “tangible things” that are “relevant” to an investigation. Since the Guardian disclosed the existence of the bulk phone records program, thanks to the ex-NSA contractor Edward Snowden, legal scholars have puzzled over how the phone numbers dialed, lengths of calls and times of calls of millions of Americans unsuspected of terrorism or espionage meet that standard.

The administration’s answer has several components. It argues in the white paper, “‘relevance’ is a broad standard”, which can include the “reasonable grounds to believe” that when all the data is collected, “when queried and analyzed consistent with the [surveillance] Court-approved standards, will produce information pertinent to FBI investigations of international terrorism.” To do this requires “the collection and storage of a large volume of telephony metadata.” That is – information about your phone calls.

It further argues that a “tangible thing” can include a phone number or the length of a phone call, and contends that the legislative history of the Patriot Act indicates that Congress always intended that to be the case, despite the incorporeality of phone data, particularly when compared to say, a medical record or a receipt. “There is little question that in enacting Section 215 in 2001 and then amending it in 2006, Congress understood that among the things that the FBI would need to acquire to conduct terrorism investigations were documents and records stored in electronic form,” the administration writes.

Finally comes a problem that was brought up by several members of the House Judiciary Committee during a raucous July hearing. The collection of the bulk phone data comes prior, logically, to any specific investigation. So how can the administration argue the bulk phone records collection is pertinent to any particular inquiry?

“Unlike ordinary criminal investigations,” the administration replies, “the sort of national security investigations with which Section 215 is concerned often have a remarkable breadth – spanning long periods of time, multiple geographic regions, and numerous individuals, whose identities are often unknown to the intelligence community at the outset.

“The investigative tools needed to combat those threats,” it continues, “must be deployed on a correspondingly broad scale.”

Put differently: “If you’re looking for the needle in the haystack, you have to have the entire haystack to look through,” as deputy attorney general James Cole testified in July.

http://www.theguardian.com/world/2013/aug/09/obama-legal-background-surveillance-nsa?CMP=twt_gu

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Posted August 10, 2013 by tmusicfan in Politics, Quote of the Day

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