Richard Falkenrath defends NSA telco revelations
Former White House Deputy Homeland Security Advisor Richard Falkenrath defends the NSA activities divulged by USA Today on Thursday in a piece in the Washington Post on Saturday. I know Rich and have a lot of respect for his knowledge of homeland security, but I think that his defense of the NSA relies heavily on inaccurate or suspect assumptions.
For example, he writes:
The potential value of such anonymized domestic telephone records is best understood through a hypothetical example. Suppose a telephone associated with Mohamed Atta had called a domestic telephone number A. And then suppose that A had called domestic telephone number B. And then suppose that B had called C. And then suppose that domestic telephone number C had called a telephone number associated with Khalid Sheik Mohammed, the mastermind of the Sept. 11, 2001, attacks. The most effective way to recognize such patterns is the computerized analysis of billions of phone records. The large-scale analysis of anonymized data can pinpoint individuals — at home or abroad — who warrant more intrusive investigative or intelligence techniques, subject to all safeguards normally associated with those techniques.
The first example he gives – connecting a known suspect to 1, 2, or 3 degrees of association – is a useful and appropriate form of investigatory analysis, and does have the potential to uncover hidden relationships among people. But that type of analysis DOES NOT REQUIRE the NSA to have complete and direct access to the entire massive database of telco call records; instead, it would be possible for the NSA or any other intelligence or law enforcement agency to query these databases through existing and legal processes, and get the limited set of information that they need to develop intelligence. I can’t fathom how NSA control of complete call records facilitates a greater level of intelligence than a limited and legally-vetted approach.
He also describes the telco call records as “anonymized data.” But anonymized data would be, by definition, entirely non-traceable to a given entity. But as Kevin Drum pointed out yesterday:
Even a child knows that phone numbers can be linked to names and addresses using ordinary commercial databases. There is absolutely nothing anonymous about this data, and only a shameless con man would try to convince us otherwise.
Later in the story, Falkenrath offers an affirmative legal interpretation of the NSA’s activities:
The three companies reported to have supplied telephone records to the NSA also appear to be acting lawfully. The Telecommunications Act of 1934, as amended, generally prohibits the release of “individually identifiable customer proprietary network information” except under force of law or with the approval of the customer. But, according to USA Today, the telephone records voluntarily provided to the NSA had been anonymized. In addition, the Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them. So it would appear that the companies have been acting not just in the public interest, but also within the law and without encroaching on the privacy of any of their customers.
I’m not a lawyer, so I can’t weigh in on this legal interpretation. But Rich isn’t a lawyer either, and other people with legal backgrounds think that this interpretation of the law is inaccurate.
Finally, Rich frames the fallout from the NSA story as a referendum on Michael Hayden’s confirmation. No doubt some people are pushing to block his confirmation because of this, but that’s a sideshow – and in fact, given his reputation has a solid manager, I don’t have a problem with his confirmation even in light of this story. What’s really at issue in light of this story is the Adminstration’s careless disregard for the Constitution and the rule of law, which I think is an immense strategic errors in the war on terror, one which strengthens our enemies, alienates our friends, divides the American public, and ultimately weakens our ability to protect the United States against the terrorist threat.
