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NSA and Privacy Safeguards

An article in yesterday’s Washington Post hinted at the safeguards in the NSA program:

The agency and its advocates maintain that its protection of that data is subject to rigorous controls and oversight by Congress and courts. For the public, it comes down to a question of unverifiable trust.

“The constraints that I operate under are much more remarkable than the powers that I enjoy,” said the senior intelligence official who declined to be named.

When asked why the NSA could not release an unclassified copy of its “minimization procedures,” which are supposed to strip accidentally collected records of their identifying details, the official suggested a reporter submit a freedom-of-information request.

In your blogger’s view the strength of the safeguards is key if their information is to be used for valid national security purposes and NOT for political purposes , e.g. IRS allegations, or employee voyeurism, e.g. Passport Office experience. Watergate happened and government trust is no longer automatic.

How independent are the overseers who check for misuse? Who do they answer to? Do they really have adequate resources? (It is unlikely that the FISA court has adequate resources even though it is independent.) Do contractor employees, like Snowden, have access to the overseers to make complaints without fear of retaliation?

A review of the statute creating the Office of Inspector General of the Intelligence Community shows that office is charged to protect intelligence information and sources and that protection of privacy of the rest of us is not a stated goal. Note that in 50 USC § 403–3h(g) this IG is allowed to talk to contractors but in 50 USC § 403–3h(g)(3) only “an employee of the intelligence community” is protected from retaliation. Thus Snowden did not have the option available to him if he had been interested in it.

Finally, there is one way this might influence a matter pending before FCC: The Japanese press has reported that if SoftBank is blocked in its merger with Sprint, it will try to buy T-Mobile. Why would SoftBank be blocked? FierceWireless has reported that Verizon Wireless (VZW) and T-Mobile were not subject to orders to deliver “metadata” to NSA because of foreign ownership. VZW is a joint venture of Verizon, a US corporation and the UK’s Vodaphone. T-Mobile is a subsidiary of the former German monopolist. (The FISA court order that Snowden released dealt with a subsidiary of Verizon NOT VZW.)

Thus the secretive CFIUS review might block the merger since it would result in 3 out of 4 US cellular carriers having some foreign ownership while the speculated SoftBank/T-Mo merger would keep it at the present 2.


There is some confusion about the current protection of Intelligence Community contractors as whistle blowers. A friend pointed outpointed out that the DNI IG website says

It is the policy of the federal government to enable employees to disclose evidence of fraud, abuse, mismanagement, or illegal activities without fear of reprisal. The Inspector General Act of 1978, as amended by the Intelligence Community Whistleblower Protection Act of 1998 provides employees and contractors of intelligence agencies with a mechanism for reporting alleged wrongdoing in IC agencies and associated programs to Congress. Under the ICWPA, IC employees have the right to engage in whistleblowing activity relating to intelligence matters of "urgent concern" and to be free from retaliatory actions for such reporting. "Urgent concerns," as defined by the ICWPA, include matters an IC employee reasonably believes to evidence violations of law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. In some circumstances, ODNI personnel (including employees, assignees, detailees, and contractors) may feel it necessary to report such matters to Congress when, in the view of the ODNI personnel, those matters are not being adequately addressed by the ODNI or another government agency. If ODNI personnel wish to report waste, fraud, abuse, violation of law, or gross mismanagement by IC employees to Congress, the matter should first be raised to the IC Office of Inspector General. The IC IG will advise the employee regarding the procedures for making an IC whistleblower complaint. Additionally, ODNI and IC personnel may report misconduct to the IC IG at any time. For additional information on whistleblower obligations, policies and procedures, to make a whistleblower disclosure, and/or if you believe that you have been a victim of whistleblower retaliation, ODNI and IC personnel should contact the Office of the IC IG at 703-482-1300.

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