May 12, 2006 1:20 PM PDT
FAQ: NSA's data mining explained
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The New York Times reported in February that NSA officials had recently met with Silicon Valley companies while shopping for better data mining techniques.
Virage, in San Mateo, Calif., boasts that its products that can transcribe the text of audio conversations are perfect for "intelligence agencies" and lists federal agencies (including the NSA's parent agency) as customers. Another product, called Analyst's Notebook and made by the Virginia-based company i2, is in use by the FBI and many "defense and intelligence agencies."
A patent (#5,937,422) granted to the NSA in August 1999 talks about extracting topics from computer-generated text, which would include telephone conversations.
Q: Which companies are cooperating with the NSA?
We don't know the whole list. So far AT&T, Verizon and BellSouth have been named as cooperating, and Qwest has said it refused to divulge information without a court order. Cox Communications has said it was not asked to hand over anything to the NSA.
There are two odd discrepancies. A survey that we published in February asked telecommunications carriers whether they "turned over information or opened up their networks to the NSA without being compelled by law." Neither Verizon nor AT&T would give a yes or a no answer to that question.
But BellSouth did answer in the negative at the time.
Q: What's BellSouth's explanation now?
A BellSouth representative said Thursday that he could not explain the discrepancy, and provided us with a statement saying: "BellSouth does not provide any confidential customer information to the NSA or any governmental agency without proper legal authority."
The statement did not elaborate on what "proper legal authority" might be--leaving open the possibility that it includes a mere polite request from the FBI or the White House.
Q: Wait--you mentioned two odd discrepancies. What's the second?
That would be Yahoo. Under cross-examination by a House committee in February, Yahoo General Counsel Michael Callahan declined five times to say whether the company opens its records to the NSA without a court order.
Q: Is this type of data mining legal under federal law? And permissible under the Fourth Amendment to the U.S. Constitution?
It depends on who you talk to. The same people who viewed the earlier wiretapping scheme as permissible are likely to argue that data mining is also perfectly OK.
Peter Swire, who worked in the Clinton White House and now teaches privacy law, has written a set of legal FAQs that say the wiretapping was unlawful. John Eastman, a conservative law professor at the Claremont Institute, argues in a letter to Congress (click here for PDF) that the wiretapping was permissible.
As for the data mining, Jim Harper of the free-market Cato Institute says it violates the Fourth Amendment's prohibition on unreasonable searches. Orin Kerr, a former Justice Department prosecutor who takes a more permissive view of police power, says his tentative conclusion is that it does not run afoul of the Fourth Amendment but the phone companies likely violated the Stored Communications Act.
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