Page 159 - Privacy in a Cyber Age Policy and Practice

BALANCING NATIONAL SECURITY AND INDIVIDUAL RIGHTS 147

ensure that this is the case and that the program will be properly contained
and held accountable in the future is next explored.

E. New Revelations

In the wake of media reports about PRISM and the NSA’s telephone
metadata program, additional reports based on the Snowden leaks and
other sources have revealed still more about the NSA’s programs. While
significant, these new revelations have not altered the basic facts about NSA
surveillance that the initial leaks of summer 2013 revealed: that it consists
of broad foreign surveillance, including significant inadvertent collection
of information belonging to U.S. persons, and that the government mini-
mizes this inadvertently collected data but retains the ability to use it under
certain circumstances. The most novel revelation has been that the NSA
discovers, hoards, and uses (rather than discloses) computer security vul-
nerabilities, 185 but such activity, even if problematic from a public policy or
cost-benefit analysis standpoint, clearly falls within the NSA’s mandate of
espionage and surveillance rather than virus protection.
A troubling revelation is found in reports that the NSA collected
“almost 3 billion pieces of intelligence on U.S. citizens in February 2013
alone” as estimated by the NSA data analysis tool known as Boundless Infor-
186
mant. While this was relatively little compared to countries like Iran (14
billion pieces of intelligence) and the total (97 billion pieces of intelligence)
over that period, it remains large in an absolute sense for collection that
is deemed “inadvertent,” and it belies previous public statements by the
NSA that it is unable to estimate how much collection of information about
Americans takes place.
Other revelations are similar in kind. The collection, month-long stor-
age, and access of “‘100 percent’ of a foreign country’s telephone calls”
using the MYSTIC and RETRO tools, 187 the bulk collection of “almost
200 million text messages” 188 and “nearly 5 billion” cell phone location
records daily 189 and 250 million e-mail and instant message address books
yearly 190 —the large scale of these activities is perhaps surprising, but they
are the types of endeavors that would be expected t of the NSA in the
cyber age. As for the NSA’s XKeyScore tool, details of which were recently
leaked and which is reported to allow “analysts to search with no prior
authorization through vast databases containing emails, online chats and
the browsing histories of millions of individuals,” the NSA argues that
“there are multiple technical, manual and supervisory checks and bal-
ances within the system to prevent deliberate misuse” and that “every
search by an NSA analyst is fully auditable, to ensure that they are proper
and within the law.” 191