NSA Looks at Americans' Data Within the Confines of the Law

The NSA doesn't collect content of conversations it gathers unless the participants are tied to terrorist activities.

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In this Socratic inspired dialogue, "Edward" is Edward Snowden, perhaps the insider whistleblower of the century, at least in his own mind. In my mind, however, he's worse than the worst spy, because of his violation of our trust and the gratuitous revelation of intelligence "sources and methods".

"Emily" is Miss Emily Litella, the "Saturday Night Live" character played by the late Gilda Radner, who always began her commentaries on "Weekend Update" with "what's all this fuss I hear about…" Then, after a key word correction from Chevy Chase and an embarrassing double take, she would think more carefully and say, "never mind."

Well, sadly, Edward has given us all an "Emily Litella moment", insofar as the secrets he betrayed – while perhaps sensational – are mostly in the "never mind" category. The sad part is that the explanations and reactions now required in our political system (for some reason we can't just say "we don't discuss these programs") could easily render us more vulnerable to terrorist attack than we were before. And, Edward's "never mind" won't be heard by anyone anyway – except perhaps his lifelong, 24/7 Russian spy handlers (he's never going anywhere, whether he's figured that out of not) – or his lifetime cellmate somewhere, sometime.

Let me explain. (And you can follow along with me here as well Edward, if you get to read this, because this part was probably left out of your "training" at the National Security Agency, such as it were. Also, the inference intended here, Edward, is that you are more ambitious than stupid, because if you had known or thought about this, you may not have done the evil you did.)

[See a collection of editorial cartoons on the NSA.]

Let's begin with the relevant history of "signals intelligence," and the basic work of the NSA. In this respect, probably the best analogy is to think about listening to short-wave radio at night, assuming you've ever done this – with your dad perhaps or Uncle Bob or the nerdy neighbor down the street.

When you spin the dial on a short-wave receiver, depending on your antenna, you can listen to the whole world – and, as atmospheric conditions permit, you can hear people talking in their own languages, some in English and also the "beep beep" and squeals of many different codes. And, it's been that way for the last 60 plus years.

It doesn't take much imagination to understand that – very early on – it was clear that, as a nation (and like most other nations) we had to set up big antennas and be "listening" – on a wide scale – to as much of this stuff as we could, and also learn to translate and decipher the various languages and codes we heard as best we could.

This activity was/is called "SIGINT," for "signals intelligence," and we also learned – right away – that we were able to collect far more of it than we could deal with in real time. This created two additional problems: 1) storage of the various kinds of signals, and 2) sorting through them in an organized way to find the information that was important for our national security – this because a lot of it wasn't. While at the same time, the occasional SIGINT "tidbit" was so very valuable and timely that it often was priceless for our national security.

[See a collection of political cartoons on defense spending.]

And, the longer we collected, stored and sorted SIGINT, the better we were able to "target" the various transmitters of information that were the most valuable and important for our national security. If we determined that the information was either coming from – or aimed at – a "U.S. person", the FBI was contacted and the matter was handled according to their rules for counterintelligence investigations, using, for example, more conventional forms of surveillance, wiretaps and physical searches. Some examples of this, mostly during the '50s and '60s, would have been the many deeply buried Soviet bloc spies in our country, who were either getting instructions or reporting to their masters via short wave.

Also, from the earliest days of SIGINT there were internal rules that limited the NSA from intentionally targeting "U.S. persons" in their collection of information, and mostly requiring "turn over" of that kind of inadvertently collected information to the FBI, as described above. However, by far the larger problem for the NSA was sorting through huge amounts of innocuous data to find the good stuff, the one in a jillion bit of information that could – just for example – reveal an important new development in ICBM targeting.

So, what did the NSA do? They invented various kinds and types of key word searches, allowing them to sort through the trillions and trillions of data bits and signals for more precise examination and analysis. And, you're right if you decided that – in order to do this – the NSA developed the very first "search engines" – all of this was pre-Internet, and done by large, mainframe computers – long before so-called modern computing!

The whole idea behind key word searches was – and is – to make the sorting process as efficient, precise and respectful of privacy as possible. Nevertheless, and to be doubly sensitive to the privacy of "US Persons", elaborate rules were/are in place to address the occasional/inadvertent collection of US Person information, such as when it might be "attached" to an otherwise usable "bit" of foreign intelligence.

[Check out our editorial cartoons on President Obama.]

Despite the scolding suggestions of illegality and impropriety attached by Edward and a compliant media, such is a very routine process at NSA that comes with heavy oversight – and has been for over 50 years. And, most developed countries in the world also do it without any limitation, some simply because they "own" their telecommunications infrastructure. Compared to this, our process is limited and unique because it incorporates the procedural due process fundamentals of our democracy.

Now, skip ahead with me if you will. The world has changed, communications have changed and all the related technologies have moved ahead.

Nevertheless, NSA still applies these same, but updated concepts, rules and procedures when sorting through the various kinds of SIGINT it collects. Not only that, the sorting process is far more efficient than it used to be, which protects our privacy even more – almost to an obsessive degree. It is more challenging to do this with routed and packaged communications passing through hubs around the world, rather than simply bouncing through the atmosphere? Yes, but the technology for data collection, sorting and privacy has kept up and addressed each new operational oddity and challenge as has appeared.

[Read the U.S. News Debate: Should Americans Be Worried About the National Security Agency's Data Collection?]

[So, Edward, our NSA still does SIGINT to collect foreign intelligence as it has for many years. However, it's ability to look at the content of the communications it may have access to – that might have embedded "U.S. person" information – is heavily regulated by intricate rules approved by the attorney general and is also reported to Congress. And, this has been the case since before you were born.]

O.K., when can the content of a conversation or communication of a "U.S. person" actually be looked at by the NSA? Simple: When, for example, that conversation or communication involves a number or address associated with a terrorist, terrorist sponsor or terrorist organization. And, because this may also be the needle in a haystack needed to connect the dots and prevent another terror attack, we're a lot safer because of it. Is this constitutional? We’re about to find out as a Federal District Court in D.C. has decided that it’s not. This will certainly be appealed quickly – a key point on appeal is that this kind of anonymous collection is done primarily for national security, not criminal, purposes.

[Finally Edward – and perhaps this is a surprise for you – is that we've long had this critical work in the proper balance and under the intense and uniquely shared executive/legislative/judicial oversight it needs to be. And, such also reflects the hard work of many thousands of dedicated and loyal Americans – not you – over the last 70 years. So, your line here, dummy, is "never mind".]

Daniel Gallington is the senior policy and program adviser at the George C. Marshall Institute in Arlington, Va. He served in senior national security policy positions in the Office of the Secretary of Defense, the Department of Justice, and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence.

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