Do Americans have a right to privacy? At what point does national security take precedence over that right? Intelligence expert Amy Zegart discussed those issues and more with Michael Hayden, the former head of the National Security Agency. Hayden served as NSA director from 1999 to 2005, and was also CIA director for three years. Zegart is codirector of Stanfords Center for International Security and Cooperation, a senior fellow at the Hoover Institution, and professor of political economy at Stanford Graduate School of Business (by courtesy), where she coteaches a course on political risk management with former U.S. Secretary of State Condoleezza Rice. The following are edited excerpts from their conversation:
The 215 program has to do with telephone metadata. So its not email traffic; its voice. And its not content, its fact of. What the agency gathers is who called whom, when, for how long. Its also within the technical definition of metadata to include locational data. But this program doesnt. Its consciously excluded. What youve got is a record of all phone calls made within the United States or between the United States and overseas thats given to the National Security Agency on a daily basis by the telecom providers.
Its not technically electronic surveillance. These are actually business records kept by the phone company in order to charge you for your phone usage. That data is then bent toward the National Security Agency, where its stored.
A key point about this is that it is unarguably domestic. Its your stuff. Its my stuff. And its put into this large database. Now, that in itself causes a lot of people concern because even with good intent, theres some nervousness about the government having that kind of information.
The NSA view is that, although that is kind of theoretically frightening, as a practical matter, one has to look at what happens to that data in order to make a coherent judgment about it.
That data is locked and inaccessible at NSA except under a very narrow set of circumstances. Number one, the number of people who are allowed to access that data is about two dozen. Actually, the right number is 22. And the way you access the data is through a number, almost always foreign, about which you have a reasonable, articulable suspicion that the foreign number is affiliated with terrorist groups.
A specific example so you raid a safe house in Yemen. And you go in with your Yemeni allies and you grab some people. And you grab whats called pocket litter, which is identifiable stuff inside their pockets.
It confirms that, yeah, these guys are who we thought they were. Theyre affiliated with AQAP Al-Qaida in the Arabian Peninsula or some other group. And you discover a cellphone that youve never seen before. Now you have a reasonable, articulable suspicion that that cellphone is, in fact, affiliated with a terrorist.
What you then get to do and Im going to be a little cartoonish, here, but its kind of how it works. What you then get to do is walk up to that database, kind of yell through the transom, and say, Hey, anybody in here talk to this phone? And then if a number in the Bronx raises its hand and says, Yeah, I do every Thursday, NSA gets to say to the number in the Bronx, Well, then who do you talk to?
Thats the program. Theres no mining of the data, and theres no pattern development, no pattern recognition. It is: Did any of those phone events that were captured there relate to a phone that we have reason to believe is affiliated with al-Qaida?
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