When Is Intelligence Considered “Collected”?

A layman might suppose that in the United States a telephone conversation cannot be intercepted by an intelligence agency such as the NSA except in compliance with the laws and guidelines governing intelligence collection.

But it’s more complicated than that because “interception” is not considered “collection,” according to a Department of Defense regulation.

“Information shall be considered as ‘collected’ only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties.”

“Data acquired by electronic means is ‘collected’ only when it has been processed into intelligible form.”

See DoD 5240.1-R, “Procedures Governing the Activities of DoD Intelligence Components that Affect U.S. Persons,” (pdf) December 1982, at paragraph C2.2.1.

“This would suggest that automated speech recognition software, creating records on US persons for purposes of pattern recognition to detect sleeper cells, would not be prohibited,” said John Pike of GlobalSecurity.org, who first called attention to this provision.

In other words, defining “collection” in the peculiar way that the DoD regulation does appears to permit the NSA to conduct automated surveillance without violation of strictures on unauthorized domestic collection.

“And by the time a US person became a ‘person of interest’ as a result of this process, there would be reason to believe [probable cause] they were an agent of a foreign power,” he proposed.

“So why did NSA not take this approach?” Mr. Pike asked. “Why not just claim this, rather than making the rather more heroic legal claims they are making?”

No Responses to “When Is Intelligence Considered “Collected”?”

  1. Kimo Crossman January 30, 2006 at 2:47 PM #

    you might look over this informative posting:

    http://arstechnica.com/news.ars/post/20051220-5808.html

    1% of calls monitored and switched means all calls.

    “As Zimmermann describes above, you monitor a few seconds of some fraction of the calls looking for “hits,” and then you move on to another fraction. If a particular call generates a hit, then you zero in on it for further real-time analysis and possible human interception. All the calls can be recorded, cached, and further examined later for items that may have been overlooked in the real-time analysis.”

  2. punpirate January 30, 2006 at 3:29 PM #

    As Crossman suggests, saving the information might be a more crucial point than scooping it up. After all, this is the crux of the related business of CIFA not purging irrelevant data from its databases, or not in timely fashion.

    The ability to store information retrieved without warrant is the larger worry here. One reading of the DoD reg is that information is not “collected” until it is reviewed by an intelligence officer. Such implies that ‘we don’t have it until we see it,’ which is factually incorrect–if it is transformed into data suitable for storage and retrieval and manipulated through data-mining or text-mining operations.

    It’s the transforming and storage of the information which is crucial with regard to privacy, not whether or not the DoD says it’s not seen it, as their reg suggests. Moreover, who decided on the language of that reg? I doubt it went through the usual public policy review process and comment period. Did anyone notice this portion of the regs, apart from DoD legal staff? Are we to trust their judgment with regard to civil rights (given the tendencies of the Reagan administration in those matters).

    I wonder how long the various intelligence agencies are saving this information. With a sophisticated enough database of multiple data sets, and the ability to cross-link among those data sets, would it be possible for a phone call made to a German number fifteen years ago, which may have passed to a half-dozen users in the meantime, suddenly get pulled up in a contemporary data mining effort because it was currently listed to a suspected terrorist cell member?

    The issue of what is stored is germane, since we know from CIFA that regulations regarding required data purges are being ignored.

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