The Curious Section 126 of the Patriot Act

What is it that the National Security Agency began doing after 9/11 that necessitated Presidential authorization for warantless surveillance?

We have all learned in the past week that the Foreign Intelligence and Surveillance Act of 1978 contains provisions that allow the government to conduct quick reaction surveillance of an individual and go to the court afterwards for a warrant.

So what would the NSA need to do that isn't covered by the provisions of FISA?

My guess is the government decided after 9/11 to monitor everyone.

Thanks JMC for pointing out that the USA PATRIOT Improvement and Reauthorization Act Of 2005 contains a Section 126, inserted by the House, requiring the Attorney General to submit a report to Congress "on any initiative of the Department of Justice that uses or is intended to develop pattern-based data-mining technology."

Data-mining is defined in Section 126 as:

"a query or search or other analysis of one or more electronic databases, where--

(A) at least one of the databases was obtained from or remains under the control of a non-Federal entity, or the information was acquired initially by another department or agency of the Federal Government for purposes other than intelligence or law enforcement;

(B) the search does not use personal identifiers of a specific individual or does not utilize inputs that appear on their face to identify or be associated with a specified individual to acquire information; and

(C) a department or agency of the Federal Government is conducting the query or search or other analysis to find a pattern indicating terrorist or other criminal activity.

In English?

Congress is seeking assurances that "the privacy and due process rights of individuals" is protected in the course of the government using massive databases of non-publicly available data; both proprietary databases and its own compiled intelligence and law enforcement databases to "search" for terrorists and terrorist connections.

In this program, the subject of monitoring is not one individual but everyone. Pattern-based data-mining is used to find links that might indicate terrorist activity.

Patterns of activity associated with actual terrorists in the past are derived from investigations and debriefings -- let's say, for example, visas from certain countries, calls from public phone booths to Pakistan, renting of cars with newly acquired driver's licenses, one-way airline tickets. Patterns are used to trigger "tip-offs."

Massive amounts of collected data -- actual intercepts of phone calls, e-mails, etc. -- together with "transaction" data -- travel or credit card records or telephone or Internet service provider logs -- are mixed through a mind-boggling array of government and private sector software programs to look for potential matches.

In discussing the "Able Danger" program, I previously described how information targeters began data mining in the 1990's to discover new patterns of indicators to identify events of interest when they could not be directly observed. The theory is that data mining techniques applied to the intelligence take, combined with massive "transaction" databases, can uncover clandestine relationships or activities.

In Section B above, when the law says "the search does not use personal identifiers of a specific individual or does not utilize inputs that appear on their face to identify or be associated with a specified individual to acquire information," I take it to mean the new computer-based data mining isn't looking for an individual per se, it is looking at information about all individuals (at least all who make international telephone calls or send e-mails overseas or travel to foreign countries according to the government) to select individuals who may be worthy of a closer look.

In other words, with the digitization of everything and new computer and software capabilities, the government couldn't go to the Court or the Congress and say, "hey, we'd like to monitor everyone on a fishing expedition to find the next Mohamed Atta."

It's one conceivable explanation. If this in fact is what the NSA has been doing since 9/11, perhaps Congress should figure out: one, whether it's legal; and two, how it can be done consistent with the Privacy Act and the Fourth Amendment.

Merry Christmas. Happy Hannukah to all. See you for a further installment on Tuesday.

http://blogs.washingtonpost.com/earlywarning/2005/12/the_curious_sec.html#more