While the Senate intelligence committee’s top Democrat and Republican favor legislation that would leave U.S. spy programs intact, some lawmakers want to ban some Internet and phone records collection -- and are asking whether other data were swept up too.
During a committee hearing yesterday, U.S. intelligence officials were questioned by one of the leading skeptics of National Security Agency surveillance programs about whether the agency captured mobile phone location data on Americans.
Senator Ron Wyden, an Oregon Democrat who supports barring some of the NSA’s surveillance practices, asked NSA Director General Keith Alexander if the agency has ever collected location data or ever developed a plan to do so.
Alexander refused to give a “yes” or “no” answer, saying that Director of National Intelligence James Clapper had submitted a classified answer about the matter.
Wyden’s line of questioning may be significant because he was one of a few lawmakers who had hinted that the NSA was collecting data on millions of Americans before former government contractor Edward Snowden’s disclosures in June about phone and Internet record collection programs.
During the hearing, Clapper and Alexander asked lawmakers not to damage the surveillance programs with overly restrictive legislation, while they conceded that tweaks could be made.
Senator Dianne Feinstein, a California Democrat and chairman of the intelligence panel, told the hearing she was writing a bill with Senator Saxby Chambliss of Georgia, the top Republican on the committee, that would adjust the NSA’s practices, codifying current requirements that analysts have a “reasonable, articulable suspicion” in order to search bulk phone records and barring surveillance of call content.
The measure -- one of a flurry of bills proposed recently by lawmakers to rein in the spy programs -- would require the NSA to publicly report statistics about its activities, as well as require the head of the NSA to be confirmed by the Senate, Feinstein said.
“It’s clear to me that the public has a misperception and that must be changed,” Feinstein said.
The bill would allow the NSA to continue collecting bulk phone records on millions of Americans, Feinstein said in an interview after the hearing. However, the agency only could query the data for three years, down from five years under current practice, Feinstein said.
The agency would have to get approval from the U.S. Attorney General to query the data for five years under her bill.
Feinstein said she also was considering restricting how the agency can mine the data. She said the text of the bill likely would be released after the intelligence committee meets Oct. 1 to work on it.
Both Clapper and Alexander told lawmakers they would be open to considering some changes to the surveillance activities, as long as they don’t disrupt the government’s ability to detect and stop terrorist plots.
One possible change would be limiting how far the NSA can go in mining the bulk records, Clapper said. “We would consider statutory restrictions on querying the data that are compatible with operational needs,” he said.
Clapper said he would also be receptive to having a privacy advocate argue before the secret court overseeing the spy programs.
“There are some changes that we believe can be made that would enhance privacy and civil liberties as well as public confidence in the program, consistent with our national security needs,” Clapper said.
President Barack Obama’s administration sent the intelligence panel language yesterday to create a “special counsel” on the court, Feinstein said.
Feinstein’s approach differs from that of other senators. Republican Senator Rand Paul of Kentucky, a favorite of Tea Party activists, joined Democrats Wyden, Mark Udall of Colorado and Richard Blumenthal of Connecticut to introduce a bill on Sept. 25 to prevent the NSA from collecting bulk phone records.
It also would close a loophole that lets the government search Americans’ electronic communications without warrants, and create an independent advocate to argue before the Foreign Intelligence Surveillance Court that oversees the programs.
The bill would permit Apple Inc. (AAPL:US), Google Inc. (GOOG:US), Facebook Inc. (FB:US) and other Internet companies to disclose information about government requests they receive for customer data, including the number of queries and whether the companies complied.
Paul said Clapper should resign for giving an untruthful answer during testimony in March. Clapper gave what he later said was an “untruthful” answer when Wyden asked if the government collects data on millions of Americans. “No,” he said. “Not wittingly.”
“Wrong decisions” by Congress could damage NSA programs that have thwarted terrorist attacks, Alexander, the NSA director, said on Sept. 25 at a conference in Washington.
Bulk phone records were used to determine whether there was a threat to New York City after the April 15 bombing at the Boston Marathon, and to determine if there were terrorist plots against U.S. embassies abroad several months ago, Alexander said in an interview after his speech.
Alexander and Clapper also are scheduled to testify before the Senate Judiciary Committee on Oct. 2.
Chambliss said NSA surveillance programs aren’t “broken” and are “working exactly as Congress understood.”
While Feinstein said in an interview her bill is “making some substantive changes,” she added that “they may not be enough for some people and I understand that.”
Senator Tom Coburn, an Oklahoma Republican, said NSA powers shouldn’t be curbed. “I’m an absolute defender of the bulk data collection,” he said in an interview. “It’s saved hundreds and hundreds of people’s lives, not only in this country but in other countries.”
Snowden, who faces U.S. espionage charges and has been granted temporary asylum in Russia, exposed a secret court order compelling Verizon Communications Inc. (VZ:US) to give the NSA phone records, such as numbers and call durations, on millions of Americans. The administration has said the metadata collection involves more phone carriers, without naming them.
The NSA collects the phone records under authority in the USA Patriot Act. Another program exposed by Snowden, known as Prism, monitors e-mail and Internet communications under the Foreign Intelligence Surveillance Act.
The NSA is required to obtain a warrant if the target of surveillance is an American. It illegally intercepted as many as 56,000 electronic communications a year of Americans who weren’t suspected of having terrorist ties before the secret FISA court found the operation unconstitutional in 2011, according to documents declassified Aug. 21.
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