US Director of National Intelligence James R. Clapper has dismissed reports of NSA PRISM spying as containing “numerous inaccuracies”, accusing whistleblowers of putting security at risk simply by talking about surveillance practices. “Discussing programs like this publicly will have an impact on the behavior of our adversaries” Clapper said in a statement, “and make it more difficult for us to understand their intentions.” The security chief’s comments come after broad accusations that Google, Apple, Facebook, and others have all participated in the clandestine NSA monitoring program, claims they have all vehemently denied.
Among the suggestions are that, as part of PRISM data gathering, Verizon has been required to hand over detailed phone records for millions of its customers in the US. The data – which includes phone call times, locations, duration, recipient, and more – covered subscribers not accused of any crime or indeed knowingly under investigation.
However, according to Clapper, the original reports by The Guardian and The Washington Post miss vital elements of the PRISM program. “Section 702 is a provision of FISA that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States” he argues. “It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.”
As the National Intelligence Director sees it, the coverage of PRISM and the FISA program “omit key information” about how it is operated, particularly that even though the NSA might have the call records from Verizon, it doesn’t mean it’s looking through them. Instead, the agency must convince a court that “there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization” if it wants to actively go hunting through the files.
In fact, Clapper claims, “only a very small fraction of the records are ever reviewed because the vast majority of the data is not responsive to any terrorism-related query.” Every 90 days the program is reassessed by the court, and the DOJ – among others – “regularly review” it to ensure it complies with the Patriot Act of 2001.
Nonetheless, it’s unclear whether Clapper’s comments – and his censure of the media for discussing PRISM – will satisfy those with privacy concerns. The fact that personal data is being collected, even if it’s not being actively examined, is unlikely to go down well, and it’s entirely possible that the controversy could spread to Europe and elsewhere as international practices toward terrorism information gathering are put under the microscope.
DNI Statement on Activities Authorized Under Section 702 of FISA
The Guardian and The Washington Post articles refer to collection of communications pursuant to Section 702 of the Foreign Intelligence Surveillance Act. They contain numerous inaccuracies.
Section 702 is a provision of FISA that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States. It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.
Activities authorized by Section 702 are subject to oversight by the Foreign Intelligence Surveillance Court, the Executive Branch, and Congress. They involve extensive procedures, specifically approved by the court, to ensure that only non-U.S. persons outside the U.S. are targeted, and that minimize the acquisition, retention and dissemination of incidentally acquired information about U.S. persons.
Section 702 was recently reauthorized by Congress after extensive hearings and debate.
Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats.
The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.
James R. Clapper, Director of National Intelligence
DNI Statement on Recent Unauthorized Disclosures of Classified Information
The highest priority of the Intelligence Community is to work within the constraints of law to collect, analyze and understand information related to potential threats to our national security.
The unauthorized disclosure of a top secret U.S. court document threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation.
The article omits key information regarding how a classified intelligence collection program is used to prevent terrorist attacks and the numerous safeguards that protect privacy and civil liberties.
I believe it is important for the American people to understand the limits of this targeted counterterrorism program and the principles that govern its use. In order to provide a more thorough understanding of the program, I have directed that certain information related to the “business records” provision of the Foreign Intelligence Surveillance Act be declassified and immediately released to the public.
The following important facts explain the purpose and limitations of the program:
There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act, which ensures that those activities comply with the Constitution and laws and appropriately protect privacy and civil liberties. The program at issue here is conducted under authority granted by Congress and is authorized by the Foreign Intelligence Surveillance Court (FISC). By statute, the Court is empowered to determine the legality of the program.
By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.
All information that is acquired under this order is subject to strict restrictions on handling and is overseen by the Department of Justice and the FISA Court. Only a very small fraction of the records are ever reviewed because the vast majority of the data is not responsive to any terrorism-related query.
The Court reviews the program approximately every 90 days. DOJ conducts rigorous oversight of the handling of the data received to ensure the applicable restrictions are followed. In addition, DOJ and ODNI regularly review the program implementation to ensure it continues to comply with the law.
The Patriot Act was signed into law in October 2001 and included authority to compel production of business records and other tangible things relevant to an authorized national security investigation with the approval of the FISC. This provision has subsequently been reauthorized over the course of two Administrations – in 2006 and in 2011. It has been an important investigative tool that has been used over the course of two Administrations, with the authorization and oversight of the FISC and the Congress.
Discussing programs like this publicly will have an impact on the behavior of our adversaries and make it more difficult for us to understand their intentions. Surveillance programs like this one are consistently subject to safeguards that are designed to strike the appropriate balance between national security interests and civil liberties and privacy concerns. I believe it is important to address the misleading impression left by the article and to reassure the American people that the Intelligence Community is committed to respecting the civil liberties and privacy of all American citizens.
James R. Clapper, Director of National Intelligence