National
Counterterrorism Center to Examine Government Files of U.S. Citizens
for Possible Criminal Behavior
December
13th, 2012
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.
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.
But
the Federal Privacy Act allows agencies to exempt themselves from
many requirements by placing notices in the Federal Register, the
government’s daily publication of proposed rules. In practice,
these privacy-act notices are rarely contested by government
watchdogs or members of the public. “All you have to do is publish
a notice in the Federal Register and you can do whatever you want,”
says Robert Gellman, a privacy consultant who advises agencies on how
to comply with the Privacy Act.
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