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NSA stops collecting some data to resolve issue with court

By Ellen Nakashima
Washington Post Staff Writer
Monday, April 19, 2010; A06

A special federal court that oversees domestic surveillance has raised concerns about the National Security Agency's collection of certain types of electronic data, prompting the agency to suspend collecting it, U.S. officials said.

The Foreign Intelligence Surveillance Court, which grants orders to U.S. spy agencies to monitor U.S. citizens and residents in terrorism and espionage cases, recently "got a little bit more of an understanding" about the NSA's collection of the data, said one official, who spoke on the condition of anonymity because such matters are classified.

The data under discussion are records associated with various kinds of communication, but not their content. Examples of this "metadata" include the origin, destination and path of an e-mail; the phone numbers called from a particular telephone; and the Internet address of someone making an Internet phone call. It was not clear what kind of data had provoked the court's concern.

Some House Republicans have argued that the suspension of collection creates an intelligence gap that undermines the government's ability to track and identify terrorist networks, according to officials familiar with the matter. Frustrated about waiting for a remedy, these Republicans say the gap can be closed with a technical fix to the Foreign Intelligence Surveillance Act, the officials said.

"This is a basic tool we used to have, and it's now gone," said one intelligence official familiar with the impasse. "Every day, every week that goes by, there's just one more week of information that we're not collecting. You sit there and say, 'This is unbelievable that we have this gap.' "

The data could be used to help analysts learn whom a suspect was working and communicating with, and to "detect and anticipate" a plot, the official said. "It's not a concern over what was being collected," he said. "It's just a question about whether the law was written in a way that allowed the information to be collected in a way that they were collecting it."

But some Democrats on Capitol Hill are confident, the officials said, that NSA Director Keith B. Alexander and the Justice Department can address the court's concerns without resorting to legislation.

"I'm satisfied he's working as quickly as he can but at the same time making sure that he's doing it as thoroughly as possible," said House intelligence committee Chairman Silvestre Reyes (D-Tex.).

The Justice Department and NSA declined to comment.

The NSA voluntarily stopped gathering the data in December or January rather than wait to be told to do so, the officials said. The agency had been collecting it with court permission for several years, officials said.

Alexander promptly informed the intelligence committees of the situation, as he is required to do. Reyes said there had been instances in the past where Alexander had not informed the panels as soon as a problem arose, but "he's held himself accountable and proffered a rational explanation." Since then, he has notified the committees promptly even before he has "all the facts" of a case, Reyes said.

At issue in this case is how well the NSA's gathering of data conforms to the Foreign Intelligence Surveillance Act, which was passed in 1978 to prevent a repeat of the domestic spying abuses of the 1960s and '70s. The law was revised in 2008 to broaden the government's surveillance authority after a 1 1/2 -year congressional debate with George W. Bush's administration, which argued that technology had outstripped the 1978 law's language.

Several House intelligence committee members discussed the challenge of calibrating collection with ensuring Americans' privacy and the nation's security. They did not confirm or deny that the NSA had stopped collecting some kinds of data.

"It was much simpler when all you needed to do was figure out whether you needed a search warrant to search a particular location," said Rep. Adam Schiff (D-Calif.), also a Judiciary Committee member. "But in an age of voice over IP, when everyone has stored electronic communications on answering machines, the laws that were quite simple rapidly become outdated. The challenge at agencies like NSA is to not only stay ahead of the technological curve, but to stay ahead of the legal curve as well."

Rep. Rush D. Holt (D-N.J.), who chairs the House Select Intelligence Oversight Panel, said that technological change meant that "you also can find yourself way out of bounds before you know it." And, he added, "in the process of getting back in bounds, you actually can lose a lot."

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