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FindLaw columnist Eric Sinrod writes regularly in this section on legal developments surrounding technology and the Internet.
With potential reforms in the wind with respect to government surveillance practices, the National Security Agency (NSA) has issued a seven-page report that seeks to explain and justify its conduct.
The report, titled "The National Security Agency: Missions, Authorities, Oversight and Partnerships," begins with a quote from President Obama that calls for "reviewing the authorities of law enforcement, so we can intercept new types of communication, but also build in privacy protection to prevent abuse."
In its prologue, the NSA report claims that when the 9/11 attacks occurred, the NSA did not have the tools or the database to allow it to search and identify certain information connections and share them with the FBI.
Due to this blind spot in intelligence, the report explained that the government's agencies needed "to connect the dots of information available to the intelligence community and to strengthen the coordination between foreign intelligence and domestic law enforcement agencies."
Likely in reaction to concerns about governmental review of the private communications of law-abiding citizens, the NSA states that while the Internet transmits 1,826 petabytes of information daily, the NSA "touches about 1.6% of that." And, of this 1.6% of data, "only 0.025% is actually selected for review."
Accordingly, "the net effect is that NSA analysts look at 0.00004% of the world's traffic in conducting their mission." Doing the math, the NSA says that amounts to "less than one part in a million." As such, "NSA's total collection would be represented by an area smaller than a dime on [a] basketball court."
While this metaphor may satisfy some critics, the actual amount of communications reviewed by the agency is fairly substantial when considered standing alone. Rather than focusing on the sheer amount of information, more interesting questions lie in what types of information are collected are what is done with that information after it has been reviewed.
Plainly, the NSA has important missions, including preventing terrorism, and as the NSA points out in its report, there are various legal bases and authorities supporting its practices. Still, as President Obama recognizes, we need to "build in privacy protections to prevent abuse."
The NSA attempts to provide further comfort by explaining that while it partners with more than 30 other countries as part of its foreign intelligence efforts, the "NSA does not and will not use a relationship with a foreign intelligence service to ask that service to do what NSA is itself prohibited by law from doing." The NSA states, for example, that its combined efforts with other countries has saved allied lives in Iraq and Afghanistan.
Striking the appropriate balance between governmental surveillance for foreign intelligence purposes and protecting privacy interests is not an easy matter. The NSA in this instance should be applauded for issuing its recent report. While the report does seek to justify the conduct of the NSA, at least the NSA does explain some of its practices to shed some light for public consideration.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. You can read his professional biography here. To receive a weekly email link to Mr. Sinrod's columns, please email him at email@example.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
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