In an effort to be more transparent about government surveillance, National Intelligence director James Clapper has declassified three documents revealing information on the collection of phone and email metadata. Two of the documents are briefings that were apparently provided to all members of Congress. They discuss the legality of metadata collection, oversight of the collection, and the apparent need for the collection. The third document is the primary court order used by the government to request large swathes of metadata from telecommunication companies such as Verizon.
The programs "operate on a very large scale"
While the documents don't reveal major new details on these programs, they do indicate that Congress had some knowledge on the breadth of two of the National Security Agency's (NSA) data collection efforts. In the documents, which were released in 2009 and 2011, the Department of Justice (DOJ) says that both the phone and email metadata collection programs “operate on a very large scale" — that generally meant collecting metadata on "all telephone calls" from a company it had requested records from. However, the DOJ also said that "the vast majority of that information is never reviewed by any person.”
In order to search through the data, the NSA is required to have "reasonable articulable suspicions" about their inquiry. Approximately every 30 days, the NSA must also report on these suspicions and searches to one of the secret FISA courts, which reviews the agency's behavior for inconsistencies. Apparently in 2009, several "compliance problems" were found — though the executive branch has reportedly "worked to solve" the issues, which weren't believed to have been intentionally harmful. In spite of the troubles, the data collection programs are said to be "subject to an extensive regime of internal checks."
The documents maintain that these data collection programs are important to US national intelligence. The DOJ suggested that one of the 9/11 hijackers may have been caught had these collection tools been in place at the time — without the tools, the NSA believed that the man was placing a phone call from overseas, when it was later determined that he had been in San Diego.
Metadata collection is said to "close the gap" in surveillance
The letters to Congress note that these programs are legal under two separate laws. Collection of phone metadata is made possible by section 215 of the Patriot Act, while email metadata collection is made possible by section 402 of the Foreign Intelligence Surveillance Act. These acts allow information to be gathered on who is placing a call or sending an email, who is being contacted, and at what time the communication occurred. The DOJ says that these programs "close the gap" that allowed that 9/11 hijacker to slip by the NSA.
Though no major information is revealed in the newly publicized documents, the act of declassifying them at all is meant to be a major step toward transparency from the government. Yesterday, CNN reported that an unnamed intelligence official had said that a "concerted" and "deliberate" attempt to open up was being made in light of broad surveillance programs being leaked by Edward Snowden. Clapper now seems to be agreeing that revealing some amount of additional information is in the public's interest.