Panel Examines Electronic Surveillance and Urges Increased Oversight

At a news briefing co-sponsored by AAAS, surveillance experts urged the U.S. government to provide proper domestic surveillance oversight to meet the needs of its war on terror. The group cautioned that the U.S. legal system appears ill-prepared to meet the rapidly changing intelligence needs by highlighting the difficulties they have encountered with the current legal and analytical surveillance framework.

The panel, co-sponsored by the Center for Media and Security (CMS) and AAAS’s Center for Science, Technology and Security Policy (CSTSP) found that the Foreign Intelligence Surveillance Act (FISA), which authorizes the president to use physical and electronic surveillance to gather information on foreign powers and terrorist organizations, needs to be further amended. The panel said the law is not equipped to deal with data-mining and wiretapping programs such as the National Security Agency’s Terrorism Surveillance Program. According to some experts, if FISA is not updated, it runs the risk of becoming obsolete and unable to protect civil liberties or mandate presidential authority.

The NSA program made headlines recently when it was widely reported that the administration of President George W. Bush had secretly obtained phone records from major communications companies.

Steven Bellovin, professor of computer science at Columbia University, said at the 9 June briefing that the NSA data-mining and warrentless wiretapping programs are part of a method of investigation that differs from traditional law enforcement and is more akin to intelligence gathering.

According to his definitions, law enforcement targets specific, known, individuals. Importantly, police or other agents pursue particular criminals or organizations based on known criminal acts already committed. Most law enforcement agencies aim to prove their case beyond a reasonable doubt.

In contrast, Bellovin said, intelligence-gathering looks at the general picture to form an informed opinion about where and when a crime might occur. Generally, this involves obtaining massive amounts of information, most of which does not depict criminal behavior. In this case, most conclusions are never beyond a reasonable doubt.

“Law enforcement targets particular individuals … [because] somebody broke the law,” Bellovin said. “In contrast, intelligence gathering is the process of amassing a vast amount of information looking for patterns that suggest criminal activity.”

Bellovin said that for someone to identify criminal activity on the data level, one must design an algorithm representing criminal patterns and trends that constantly battle against false positives and negatives.

In addition to changing how police fight crime, the NSA programs raise significant legal questions.

According to Suzanne Spaulding, a lawyer and principal at Bingham Consulting Group, the Senate Judiciary Committee has been frustrated in its effort to examine the legality of the NSA’s programs because the Bush administration refuses to provide details of its programs. “One cannot evaluate legality without facts,” Spaulding says.

FISA was adopted in 1978 to govern electronic surveillance of foreign powers and their agents in order to gather foreign intelligence inside the United States. (“Foreign powers” includes terrorist groups.) The government is required to get an order from a secret court established for just this purpose. To justify the order, the government must establish probable cause to believe that the target is a foreign power or “an agent of a foreign power”—which includes anyone who knowingly aids or abets a terrorist. The law also provides a criminal penalty for anyone who conducts electronic surveillance “except as authorized by statute.”

There are two circumstances under which a court order is not required. The first is where the U.S. attorney general certifies that the communication is exclusively between foreign powers and there is no substantial likelihood that the surveillance will acquire the contents of any communications to which a United States person is a party. The second is in the event of a declared war, at which point the president can conduct warrantless searches for up to 15 days following the declaration.

Spaulding contends that legislators have failed to ensure the NSA programs are not violating civil liberty protection because NSA officials have remained unwilling to testify before congressional committees. “Congress does not know the nature of the government’s need … [nor] do we know the level of privacy intrusion,” Spaulding said.

According to Matt Blaze, associate professor of computer and information science at University of Pennsylvania, among the biggest challenges of a data-mining program is clearly recognizing the trends that suggest criminal activity among the dissonance of extra data. Because the collection, storage and analysis of information weigh heavy on space, financial and time resources, Blaze suggested the NSA should consider becoming more selective in what it monitors.

“Do we collect more or do we change how we look at it?” Blaze asked. “The more data collected, the larger the picture, the more dissonance.”

According to Benn Tannenbaum, senior program associate at CSTSP, it is essential for the legal community to become more knowledgeable about new technologies.

“While we see increasing dialogue between the legal and scientific communities in the area of patents, we don't seem to see that in the area of national security law. As the law enforcement and intelligence gathering communities become more technically sophisticated, we need to see greater technical competence in the legal community as well,” he said.

Spaulding envisioned future legal challenges to the NSA programs, much like the American Civil Liberties Union (ACLU) case whose opening arguments were heard earlier this month in Michigan. In the lawsuit, the ACLU claims that the wiretapping violates American’s rights of free speech. While no one knows how the case will be decided, Spaulding hopes this brings the discussion to the forefront. “An enlightened citizenry is the only check on the executive [branch of government],” she said.

The on-the-record luncheon discussion, which was attended by more than 15 news reporters, was moderated by Harry Disch, president of the Center for Media and Security.

The Center for Science, Technology and Security Policy (CSTSP) was established by AAAS through support from the Science, Technology & Security Initiative at the MacArthur Foundation. The goal of the Center is to encourage the integration of science and public policy for enhanced national and international security. The Center acts as a two-way portal that facilitates communication between academic centers, policy institutes, and policymakers.

Benjamin Somers

21 June 2006