During a Senate Intelligence Committee hearing on Thursday, Sen. Ron Wyden repeatedly asked NSA chief Keith Alexander: Has the NSA ever collected location information along with the metadata it gathers on phone calls? "Under Section 215," Alexander replied, "NSA is not collecting cell site data." In other words: I don't want to answer that.
When a cell phone connects to a cell tower, that information is stored. Phones often connect to multiple towers in quick sequence or simultaneously, data which is stored with the call and can be used to identify where someone is. Under Section 215 of the Patriot Act, the NSA collects data on a daily basis about phone calls, including duration and the numbers on either end. But has it ever collected that location data?
Wyden has been pressing this issue for some time. The Oregon Democrat asked in 2011. He hinted at it after the Snowden leaks began. In July, NSA deputy director Chris Inglis said the agency wasn't collecting that data "under this program."
Here's his exchange with Alexander on Thursday.
Wyden: About two dozen other senators have asked in the past whether NSA ever collected or made any plans to collect Americans' cell site information in bulk. What would be your response to that?
Alexander: [repeating a response from a July letter from Director of National Intelligence James Clapper] … Under Section 215, NSA is not receiving cell site location data and has no current plans to do so. As you know, I indicated to this committee on October 20th, 2011, that I would notify Congress of NSA's intent to obtain cell site location data prior to any such plans being put in place. As you may also be aware, I expressed …
Wyden: I think we're all familiar with it. That's not the question I'm asking, respectfully. I'm asking: has the NSA ever collected or ever made any plans to collect cell site information? That was the question we still respectfully have not gotten an answer to. Could you give me an answer to that?
Alexander: We did. … As you're aware I expressly affirmed this commitment on June 25th, 2013. … Additional details were also provided in the classified supplement to Director Clapper's July 25th response to this question. What I don't want to do, Senator, is put out in an unclassified forum anything that's classified here. … I saw what Director Clapper sent and I agree with it.
Wyden: General, if you're responding to my question by not answering it because you think that's a classified matter, that is your right. We will continue to explore that. I believe this is something the American people have a right to know: whether NSA collected or made plans to collect cell site information.
Allow us to translate: We don't currently collect that information under the Patriot Act. But answering the question could mean "put[ting] out in an unclassified forum anything that's classified." Alexander also pointed to a footnote in a recently declassified Section 215 order from the FISA Court, the body that approves NSA surveillance. It makes the same "under this program" distinction ("CSLI" is cell site location information), saying that "all call detail records" from "all persons" haven't been collected.
Wyden had introduced that question, incidentally, by noting the futility of trying to protect intelligence-gathering tools through forced obscurity. "I believe any government official who thought that the intrusive, constitutionally-flawed surveillance system would never be disclosed is ignoring history," he said. "The senators pointed out on the Senate floor two years ago: a quick read of history shows that, in America, the truth always managed to come out, notwithstanding patriotism of thousands of dedicated intelligence professionals." Then he asked Alexander his question.
The hearing was otherwise largely a retread of past such hearings. Committee Chair Dianne Feinstein offered the witnesses (which also included Clapper) plenty of opportunities to defend the programs, saying, "It is up to you, gentlemen of the intelligence community, to lay out the case and set the record straight." The committee's vice chairman, Sen. Saxby Chambliss, critiqued Edward Snowden, saying that there was "no doubt" the committee was there, proposing some reforms, thanks to him. But, he cautioned, "Mr. Snowden may be a hero to our enemies, but he is certainly no whistleblower."
One slight revision from Alexander to past comments. The NSA's inspector general found "only 12 substantiated case of willful [privacy] violation over 10 years — essentially, one per year," apparently with the Patriot Act data collection. In the past, the argument has been that there were no intentional violations. We know that more accurate figure because of the non-whistleblower — who may also offer us some further insight into the geolocation issue.
Photo: Wyden and Feinstein in June. (AP)