Homeland Security Watch

News and analysis of critical issues in homeland security

November 12, 2008

NAO Has Satellite Data, But A “No” From Congress

Filed under: Intelligence and Info-Sharing — by Peter J. Brown on November 12, 2008

~Guest Post~

Unresolved privacy and civil liberties issues continue to prevent the DHS National Applications Office (NAO) from engaging in any of its proposed law enforcement-related satellite surveillance activity. However, the NAO continues to evolve in important ways. While the NAO, which was formally launched just over a year ago as the Department of Homeland Security’s central satellite data and imagery clearinghouse, has some funding, it still is not operational, according to DHS spokeswoman Laura Keehner.

NAO operates no spy satellites, but it is intended to facilitate the use of, access to, and requests for geospatial intelligence (GEOINT), Measurement and Signature Intelligence (MASINT), and Electronic Signals Intelligence (ELINT) from both national and commercial surveillance systems for many new and non-traditional civil agency users. Sounds good on paper, but, absent suitable transparency, firm judicial oversight, and accountability regarding methods and procedures, Congress appears neither ready nor willing to let NAO offer satellite-based surveillance data to civilian law enforcement agencies.

DHS remains optimistic. “The NAO will ensure a consistent, repeatable process for requests from these civil agencies of this information, while including required reviews for the protection of sources and methods, privacy, civil rights and civil liberties. The NAO will advocate and broker agency requirements with the appropriate intelligence community functional manager,” according to Keehner.

However, the Government Accountability Office’s “National Applications Office Certification Review,” issued on November 6, simply states that most if not all of the key concerns expressed over the past year by members of Congress and others remain unresolved.

Current funding levels for NAO are intended only to sustain it, and additional funds may become available in the next fiscal year. The failure to gain GAO certification underscores the considerable uncertainty surrounding NAO at this point. If the OK is given to NAO to initiate law enforcement support operations, NAO will probably require more staff and a larger budget.

Progress Despite Setbacks
While its law enforcement support role awaits further clarification and approval, NAO continues to evolve. Avoiding any duplication of effort with respect to satellite imagery delivery and distribution is one of NAO’s top priorities.

“As the NAO matures, appropriate linkages with key DHS offices such as OEC, as well as appropriate linkages with offices in other agencies, will be important to pursue and put in place. No specific plans exist at this time,” says Keehner. “NAO will participate with all relevant emergency response and coordination plans of its customer and provider agencies to ensure emergency services arrive to those customers in a timely manner.”

NAO’s civil support activity means, among other things, that FEMA will become a major consumer of NAO services. Regardless, NAO is now a firmly fixed entity when the need for such an entity was never clearly defined nor even discussed in great detail in the first place, at least not in the context of the disaster response or emergency management priorities or other FEMA-related performance improvements, which were identified following Hurricane Katrina.

As NAO gears up to make multiple satellite-based civil support applications available for disaster response and monitoring purposes including such things as the rapid identification of emergency ingress and egress routes etc, NAO’s support role in any large-scale natural disaster or terrorist attack may require additional updating of the National Emergency Communications Plan, the National Response Framework, and possibly the National Incident Management System, given constraints imposed by certain CBRN scenarios. For more on this, consider reading “Why the Country Needs the National Applications Office” which was written in July for the DHS online “Leadership Journal” by Charlie Allen, DHS Under Secretary for Intelligence & Analysis.

With its yet to be approved local law enforcement support operations, NAO will propel DHS directly onto the traditional turf of the Department of Justice, and how these two agencies will interact as a result remains to be seen.

Peter J. Brown, a satellite technology journalist from Maine, often addresses emergency management and disaster response issues. His commentary on the expanding role of satellites in global preparedness, surveillance, and response appears in the October 2008 issue of “Disaster Medicine & Public Health Preparedness”, a journal of the American Medical Association.

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Comment by William R. Cumming

November 12, 2008 @ 9:24 am

The NAO should be considered a permanent part of DHS. It has a difficult task because of the need to move from the classified world to the unclassified world and back and forth. This means unusal ability in the leadership and staff that has credibility with all users and adequate funding and contract support.
Tragically, in the past, e.g. the federal response to Hurricane Andrew which made landfall twice in August 1992, and almost cost Florida the election for President George H.W. Bush (although he ended up winning in Florida but losing the election), satellite imagery was in FEMA but not made available to either the FEMA leadership or the White House resulting in a very very serious misunderstanding of the impact of the hurricane on South Florida. Lives may even have been lost because of this failure to come to closure on procedures and processes for integration of satellite imagery in disasters. Now, even more important DHS has a variety of missions for the NAO’s programs, functions and activities that seem very legitimate to me although also at the high end of the so-called “Wicked Problems” label that the Public Administration types use to characterize difficult public administration issues. So be it because it must be done.
Perhaps NAO could learn from the EPA experience in attempting to use satellite imagery for environmental enforcement which raised of course Constitutional 4th Amendment and 5th Amendment issues (search &seizure and self-incrimination). EPA experience intersected with Congressional oversight and DOJ/OLC review and that history should be made public and available. Perhaps this would help the NAO’s legal support staff, and of course here is hoping that it has such because some of the most sophisticated legal issues outside of off-shore interrogation tactics are involved and controversy is not only possible but likely including court challenges.

Comment by Michael S-G

November 13, 2008 @ 3:51 am

Peter – How does DHS plan to separate the law enforcement and the FEMA-related disaster relief activities of this programme? It seems that these have very different ends and need to be regulated separately. I’m not sure that anyone would want DHS in charge of advanced satellites without the “suitable transparency, firm judicial oversight, and accountability regarding methods and procedures” which you mention as absent.

Also, with the amazing use of Google Maps and Google Earth following Hurricane Katrina, the the Indian Ocean Tsunami in 2004, to what level does this need to be a ‘private’ programme?

Comment by Peter J. Brown

November 13, 2008 @ 9:11 am

All good questions. One of the real challenges from the law enforcement standpoint leaving aside the FEMA operations angle for a moment is how the metadata — the digital tagging system that allows for the orderly storage and rapid retrieval of data — will evolve. This will go far beyond the conventional realm of evidence gathering and filing as it will be highly unlikely that surveillance data will simply be captured and distributed on a one-time basis, for example.

Once the courtroom door opens, this will become much more complicated than the admission of the El Hage satellite phone intercepts, for example, which were entered into evidence during the federal district court case in the Southern District of New York (UNITED STATES OF AMERICA v. S(7)98CR1023 USAMA BIN LADEN, et al.) in May, 2001. This mention of satellite phone intercepts is meant to serve as a reminder of the ELINT dimension.

Think about the prioritization issues that have to be addressed. Saying that NAO will simply serve as the gatekeeper in this instance, and that all satellite data and imagery requests for access to this data will be handled accordingly glosses over the scale of the undertaking, let alone likelihood that mission creep will set in.

There is another key consideration. While everyone may be focusing on the satellites, it is really the expanded use of aerial sensors — standalone or as part of integrated sensor suites — that needs to be addressed. This is not relevant to the existing real-time or near-real-time satellite imagery disaster response activity overseen by FEMA, National Guard — such as “Eagle Vision” –and NORTHCOM under the existing NRF, for example. However, once the door opens to satellite surveillance, look for Unmanned Aerial Vehicles or UAVs such as the Predators and the much larger, higher-flying GlobalHawks. of course, UAVs have been performing surveillance missions over the California wildfires and other natural disaster sites without any mention of operators or users of the imagery in question being given training that addresses “protection of sources and methods, privacy, civil rights and civil liberties” to quickly cross the line into law enforcement operations.

Why not use UAVs once satellites are given the green light? UAVs can loiter far longer on scene, that is, undertake longer surveillance missions in general in a manner far more persistent, at a much lower cost and at a much lower altitude than any satellite. We should also not overlook more capable aircraft designed and equipped for multi-mission enforcement activities such as the planes recently requested by CBP, for example.

I refer you again to the GAO “National Applications Office Certification Review” — http://www.gao.gov/new.items/d09105r.pdf — issued on November 6 where GAO states on p.3,

“Specifically, DHS has not resolved legal and policy issues associated with NAO support for law enforcement. The NAO charter states that requests for law enforcement domain uses (i.e., activities relating to enforcing criminal or civil laws or investigating violations thereof) will not be accepted by the NAO until interagency agreement is reached on unresolved legal and policy issues. An independent study group had determined that the legality of using satellite imagery of domestic subjects for law enforcement purposes raised difficult issues that had not been fully settled. Work has begun to address these issues, and the department now plans to recertify the NAO’s compliance with all laws before accepting requests related to law enforcement. Recertification following the resolution of legal and policy concerns will be an important element in providing assurance that NAO operations are in compliance with all applicable laws.”

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May 18, 2009 @ 4:13 am

[…] a journal of the American Medical Association (subscription required).  He has also previously addressed the NAO and the National Emergency Communications Plan here at HLSwatch. Share This […]

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