Gen. Keith Alexander, director of the National Security Agency, speaks during a hearing of the Senate Judiciary on Capitol Hill on Wednesday.
By Ali Watkins McClatchy Newspapers
WASHINGTON -- Senate Intelligence Committee chairwoman Dianne Feinstein, a staunch defender of the National Security Agency's data collection programs, appeared Wednesday to confirm that the NSA is gathering information on where Americans are when they use their cell phones -- something NSA officials repeatedly have denied in public.
The apparent confirmation, which may have been inadvertent, came at a Senate Judiciary Committee hearing on the NSA program. Ms. Feinstein, D-Calif., is also a member of that panel.
"I've listened to this program being described as a surveillance program. It is not," Ms. Feinstein said. "There is no content collected by the NSA. There are bits of data -- location, telephone numbers -- that can be queried when there is reasonable and articulable suspicion."
Ms. Feinstein's office did not reply to a clarification request.
Meanwhile, the government argued in papers released Wednesday that a federal court should not let five leading Internet firms reveal how often they are ordered to turn over information about their customers in national security investigations.
In a Foreign Intelligence Surveillance Court filing, the government said allowing the companies to release such detailed information "would be invaluable to our adversaries," providing a clear picture of where the government's surveillance efforts are directed and how its surveillance activities change over time, the court papers stated.
Companies seeking to release the information on the orders received are Google Inc., Microsoft Corp., Yahoo Inc., Facebook Inc. and LinkedIn Corp.
The companies say they want to make the disclosures to correct inaccuracies in news reports and alleviate public speculation about the scope of the companies' cooperation with the U.S. government. The providers want to show that only a tiny fraction of their customers' accounts have been subject to legal orders.
Whether the NSA is collecting so-called location data has become a contentious issue in the debate over the agency's programs, one of which requires U.S. cell phone firms to provide the NSA with daily records of Americans' cell phone usage, including numbers called and how long those calls last.
The NSA has denied, however, that the data include phone locations, which is recorded even when the phone is not in use.
Last week, the NSA director, Gen. Keith Alexander, denied that his agency was collecting location data in response to a question Sen. Ron Wyden, D-Ore., posed at an Intelligence Committee hearing Ms. Feinstein chaired. But Gen. Alexander also was careful to restrict his reply to programs authorized under the USA Patriot Act's Section 215.
At Wednesday's judiciary hearing, Gen. Alexander used the same formulation in denying that the NSA was collecting location data under the Patriot Act. "As NSA has previously reported ... NSA does not collect location information under Section 215 under the Patriot Act," he said.
But Gen. Alexander added that in 2010 to 2011, the NSA did experiment with collecting cell phone location data, but that the agency currently does not collect such information "under Section 215."
The conflict between Gen. Alexander's statement and Ms. Feinstein's suggests that NSA programs operating outside the Patriot Act and the Foreign Intelligence Surveillance Act may be collecting more information on Americans than the public has been led to believe.
Former NSA contractor Edward Snowden revealed in June that the NSA had been authorized to collect vast amounts of information under two sections of law, Section 215 of the Patriot Act and Section 702 of the Foreign Intelligence Surveillance Act, and attention has since been focused on those programs. But it has become clear that many intelligence activities are governed neither by Section 215 nor by Section 702.
Ms. Feinstein last week said she had ordered a review of all programs operating under a presidential directive, Executive Order 12333, last amended in 2008.
Gen. Alexander made clear Wednesday that the NSA is careful to separate programs authorized under Sections 215 and 702 and those authorized under Executive Order 12333, and that specific wording he uses is significant.
Asked at the Judiciary Committee session about 12 incidents in which NSA employees had used electronic data the agency had gathered to spy on personal love interests, Gen. Alexander denied that the violations occurred under the contested programs. "All of those were under Executive Order 12333. None under 215 or 702," he said.