Page 50 - Privacy in a Cyber Age Policy and Practice

MORE COHERENT, LESS SUBJECTIVE, AND OPERATIONAL 35

That the level of accountability can be operationalized can be gleaned
from various debates about whether it is sufficient. For instance, it has been
widely argued that the Foreign Intelligence Surveillance Court (FISC) is
much too lenient because it has reportedly declined a mere 0.03% of the
government’s requests for court orders authorizing intentional electronic
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surveillance of individuals in the United States. Defenders of the For-
eign Intelligence Surveillance Act, which governs such courts, argue that
the number is low because FBI agents, fearing damage to their careers if
their requests are rejected, file only well-justified requests or because the
FISC often returns requests for reassessment rather than rejecting them
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outright. This debate suggests that the data used to assess the FISC’s
strictness need to be fine-tuned but also shows that accountability can be
operationalized.
In June 2013, Gen. Keith Alexander, director of the National Security
Agency (NSA), testified to the House Intelligence Committee that the
surveillance programs revealed by Edward Snowden had contributed to
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averting “potential terrorist events more than 50 times since 9/11.” How-
ever, an investigative report by the New America Foundation found that
in the 225 cases of “individuals recruited by al-Qaeda or a like-minded
group or inspired by al-Qaeda’s ideology, and charged in the United
States with an act of terrorism since 9/11” the NSA’s collection of phone
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metadata belonging to U.S. persons was of minimal help. More specifi-
cally, the phone metadata collection program “appears to have played an
identifiable role in initiating, at most, 1.8 percent of these cases,” while
surveillance of non-US persons was helpful to 4.4 percent of the cases,
and “NSA surveillance under an unidentified authority” was helpful to
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1.3 percent. At most, therefore, NSA bulk surveillance programs may
have substantially contributed to 7.5 percent of these investigations—or
16 cases in 12 years. 76
A report released by the Justice Department in 2004 held that 179 con-
victions or guilty pleas stemming from 310 investigations of terrorism were
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materially helped by the Patriot Act. However, a later investigation by The
Washington Post found that despite President Bush’s claims that “federal
terrorism investigations have resulted in charges against more than 400
suspects, and more than half of those charged have been convicted,” only
39 individuals were by June 2005 actually convicted of terrorism or other
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crimes against national security. Of the 1,755 delayed-notice search war-
rants authorized by the Patriot Act from 2006 to 2009, only 15 (or 0.8%)
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were related to terrorism investigations. More than 1,600 warrants were
related to drug investigations. 80
To see the utility of these kinds of data for the operationalization of
accountability, one only has to imagine that the figures ran the opposite