Remember when government needed something called a warrant or even probable cause to look at your records? Good times, good times. I’m nostalgic for the halcyon days of, er, February of this year, before the Attorney General of the United States signed off on an order allowing the government to access pretty much everything it wanted in the name of counterterrorism. The Wall Street Journal found out about the order and got a FOIA request to force its exposure:
Top U.S. intelligence officials gathered in the White House Situation Room in March to debate a controversial proposal. Counterterrorism officials wanted to create a government dragnet, sweeping up millions of records about U.S. citizens—even people suspected of no crime.
Not everyone was on board. “This is a sea change in the way that the government interacts with the general public,” Mary Ellen Callahan, chief privacy officer of the Department of Homeland Security, argued in the meeting, according to people familiar with the discussions.
A week later, the attorney general signed the changes into effect.
Through Freedom of Information Act requests and interviews with officials at numerous agencies, The Wall Street Journal has reconstructed the clash over the counterterrorism program within the administration of President Barack Obama. The debate was a confrontation between some who viewed it as a matter of efficiency—how long to keep data, for instance, or where it should be stored—and others who saw it as granting authority for unprecedented government surveillance of U.S. citizens.
The rules now allow the little-known National Counterterrorism Center to examine the government files of U.S. citizens for possible criminal behavior, even if there is no reason to suspect them. That is a departure from past practice, which barred the agency from storing information about ordinary Americans unless a person was a terror suspect or related to an investigation.
Now, NCTC can copy entire government databases—flight records, casino-employee lists, the names of Americans hosting foreign-exchange students and many others. The agency has new authority to keep data about innocent U.S. citizens for up to five years, and to analyze it for suspicious patterns of behavior. Previously, both were prohibited. Data about Americans “reasonably believed to constitute terrorism information” may be permanently retained.
The changes also allow databases of U.S. civilian information to be given to foreign governments for analysis of their own. In effect, U.S. and foreign governments would be using the information to look for clues that people might commit future crimes.
“It’s breathtaking” in its scope, said a former senior administration official familiar with the White House debate.
Counterterrorism officials say they will be circumspect with the data. “The guidelines provide rigorous oversight to protect the information that we have, for authorized and narrow purposes,” said Alexander Joel, Civil Liberties Protection Officer for the Office of the Director of National Intelligence, the parent agency for the National Counterterrorism Center.
The Fourth Amendment of the Constitution says that searches of “persons, houses, papers and effects” shouldn’t be conducted without “probable cause” that a crime has been committed. But that doesn’t cover records the government creates in the normal course of business with citizens.
Congress specifically sought to prevent government agents from rifling through government files indiscriminately when it passed the Federal Privacy Act in 1974. The act prohibits government agencies from sharing data with each other for purposes that aren’t “compatible” with the reason the data were originally collected.