The New York Times on October 2, 2013 released the following:
By CHARLIE SAVAGE
“WASHINGTON — The National Security Agency in 2010 and 2011 conducted a secret pilot project to test the collection of bulk data about the location of Americans’ cellphones, but the agency ultimately decided against putting such a program into play for now, according to intelligence officials.
The existence of the pilot project, which has not previously been reported, was recently declassified by James R. Clapper, the director of national intelligence, but it has not been publicly disclosed. It was outlined in a draft answer obtained by The New York Times and written for Mr. Clapper to read at a Senate Judiciary Committee hearing on Wednesday if he is asked about the topic.
The answer is one paragraph long and contains scant details. It says that the N.S.A. does not currently collect locational information under Section 215 of the Patriot Act, the provision that forms the asserted legal basis of its once-secret program that is collecting logs of all domestic phone calls from telephone companies.
“In 2010 and 2011 N.S.A. received samples in order to test the ability of its systems to handle the data format, but that data was not used for any other purpose and was never available for intelligence analysis purposes,” the draft answer says, adding that the N.S.A. has promised to notify Congress and seek the approval of a secret surveillance court in the future before any locational data was collected using Section 215.
An official familiar with the test project said its purpose was to see how the locational data would flow into the N.S.A.’s systems. While real data was used, it was never queried as part of any investigation, the official said. It was unclear how many Americans’ locational data was ingested as part of the project or whether the N.S.A. has held onto that information.
But Senator Ron Wyden, an Oregon Democrat who receives classified briefings as a member of the Intelligence Committee and who has raised oblique concerns about cellphone location tracking, said in a statement on Wednesday that there was more to know about the matter than the government has declassified.
“After years of stonewalling on whether the government has ever tracked or planned to track the location of law-abiding Americans through their cellphones, once again, the intelligence leadership has decided to leave most of the real story secret — even when the truth would not compromise national security,” Mr. Wyden said.
Questions about what, if anything, the N.S.A. has been doing in the bulk tracking of Americans’ movements using cell-site location data have been simmering for several years. The issue flared again last week following an ambiguous exchange between Mr. Wyden and Gen. Keith B. Alexander, the director of the N.S.A., at a Senate Intelligence Committee hearing.
Mr. Wyden has been a critic of domestic surveillance programs and filed legislation in 2011 and again this year that would require warrants for obtaining someone’s locational data for a criminal investigation, while leaving ambiguous whether a similar step was also necessary in the context of a national security investigation. It is unclear what prompted his concerns.
At the hearing, he asked Mr. Alexander “whether the N.S.A. has ever collected or made any plans to collect Americans’ cell-site information in bulk.”
General Alexander replied that the N.S.A. “is not receiving cell-site location data and has no current plans to do so” under Section 215 of the Patriot Act, which allows the secret surveillance court to issue orders for records from businesses — like telephone companies — if the records are “relevant” to an intelligence investigation.
But General Alexander also said there was other classified information that the N.S.A. had sent to the committee in July, in response to a written version of the same question, that provided “additional detail” responsive to the issue.
It is legally unclear whether long-term tracking of people’s locations and movements by the government raises privacy rights under the Fourth Amendment. In a 1979 case involving small-scale collection of “metadata” about telephone calls — information related to the calls, like the number dialed and the duration, but not the contents of the communications — the Supreme Court ruled that such records were not protected by the Constitution because people have already revealed the existence of their calls to telephone companies and so have no reasonable expectation of privacy.
But in 2012, the court ruled that the police’s use of a G.P.S. tracker attached to a suspect’s car violated Fourth Amendment privacy rights. The case turned on the fact that the police had to trespass on the suspect’s property to attach the device, but five justices separately suggested that any long-term, automated collection of a person’s public movements might raise Fourth Amendment issues.”
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Douglas McNabb – McNabb Associates, P.C.’s
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