LETTER TO JACK BROOKS FROM JON T. ANDERSON

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00338R000200330033-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: December 21, 2016
• Document Release Date: September 15, 2008
• Sequence Number: 33
• Publication Date: February 22, 1984
• Content Type: LETTER

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22 February 1984
Deputy Director of Legislative
Liaison
Room 7D43
Central Intelligence Agency
Attached is a copy of comments on
H.R. 4620 that we provided to Congressman
Brooks at his request.
Encl:
a/s
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NATIONAL SECURITY AGENCY
CENTRAL SECURITY SERVICE
FORT GEORGE G. MEADE, MARYLAND 20755
Serial: N-0272
21 February 1984
The Honorable Jack Brooks
Chairman, Committee on Government Operations
United States House of Representatives
Washingt9n, DC 20515
Dear Mr. Chairman:
The Director, National Security Agency, Lt Gen Lincoln D.
Faurer, has asked that I respond to your letter of February 6,
1984, requesting a report and comments on H.R. 4620, the "Federal
Telecommunications Privacy Act of 1984."
Summary of the Bill
H.R. 4620 would prohibit federal officers and employees
from recording or listening-in upon any conversation conducted
on a federal telecommunications system or conducted on any other
telecommunications system if the conversation is between a federal
officer or employee and any other person and involves the conduct
of Government business.
Exempted under subsection (b) would be the recording of, or
listening-in upon, a conversation without the consent of any
party to it when the recording or listening is authorized under
the'Omnibus Crime Control and Safe Streets Act of 1968 or the
Foreign Intelligence Surveillance Act.
Exempted under subsection (c) would be the recording of, or
listening-in upon, a conversation with the consent of one party
to it when the recording or listening-in is performed (1) for
law enforcement purposes, (2) for counterintelligence purposes,
(3) for public safety purposes, (4) by a handicapped employee
as a tool necessary to his or her performance of official duties,
or (5) for service monitoring purposes.
Recording of or listening-in upon telephone conversations
pursuant to subsection (c)(3), (4), and (5) must have prior
approval by the agency head or designee of written determinations
specifying the operational need for listening-in or recording
conversations, the system and location where it is to be performed,
the telephone numbers and recorders involved, and operating times
and the expiration date and justifying the use. Service monitor-
ing under subsection(c)(5) could be conducted only by designated
personnel after positive action to inform callers of the monitor-
ing and labeling of telephone instruments subject to the monitor-
ing. Only the minimum number of calls necessary to compare a
statistically valid sample could be monitored. No data identifying
the caller could be recorded by the monitoring party, and no
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information obtained by the monitoring could be used against the
calling party.
Under subsection (d) recording of or listening-in upon a
telephone conversation with the consent of all parties to it
could be conducted in cases of telephone conferences, secretarial
recording, and other acceptable administrative practices under
strict supervisory controls to eliminate possible abuses.
Current copies and subsequent changes of agency documentation,
determinations, policies, and procedures supporting operations
pursuant to subsections (c)(3), (4), or (5) would be required to
be forwarded before the operational date for the General Services
Administration (GSA). The GSA would be accountable for informa-
tion concerning operations under subsection (c)(3), (4), and
(5), and for periodically reviewing listening-in programs with
agencies to ensure compliance with federal property management
regulations. The GSA would be charged with obtaining compliance
with the enacted H.R. 4620 if an agency failed to document its
devices in accordance with the Act.
Subsection (g) provides that any recording or transcription
of a conversation made under (or in violation of) the Act would
be a record within a system of records under the Privacy Act of
1984 as to each party to the conversation. Subsection (h) would
include any such recording or transcription within the protection
of a criminal statute prohibiting the concealment, removal, muti-
lation, obliteration, falsification, or destruction of records
filed with officials of U. S. courts or other public office.
Effects on NSA
Set forth below are the effects that this bill would have
on the activities of the National Security Agency (NSA). In
reviewing these effects, you should keep in mind two key points.
First, the bill proposes to legislate in an exceedingly complex
area, i.e., electronic surveillance. H.R. 4620 would be at least
the fourth statute that affects monitoring of telecommunications
(see also 18 U.S.C. ??2510 et seg., 47 U.S.C. ?605, and 50
U.S.C. ?1801 et seq.). The three existing statutes are not well
integrated with each other, and against this background H.R. 4620
inevitably adds complexity. Without more time to consult with
all interested parties in the Executive Branch, I cannot be certain
that the full impact of H.R. 4620 on NSA is yet recognized. Thus,
this Agency may be required to supplement these comments. Second,
while the scope of H.R. 4620 as regards the activities of NSA is
potentially quite broad, the actual incidence of some effects
may be very infrequent. For example, in the conduct of its SIGINT
mission NSA rarely, if ever, overhears the telecommunication of
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a federal employee discussing Government business. Nevertheless,
it is a possibility and could occur accidentally in the course
of an overseas surveillance which is not conducted under the
Foreign Intelligence Surveillance Act.
Two primary missions of the National Security Agency (NSA)
would be affected by your proposed statute. Significant aspects
of the Agency's signals intelligence (SIGINT) mission are governed
by the Foreign Intelligence Surveillance Act of 1978 (FISA). By
virtue of subsection (b), that mission would be unaffected by
the Act, unless recordings made under FISA authority would be
deemed to he "made under...this Act" and therefore deemed records
in a system of records for Privacy Act purposes and records for
purposes of the criminal statute cited in subsection (h).
Automatically declaring a SIGINT recording as a Privacy Act
record regardless of how the recording is maintained and retrieved
would be inappropriate for several reasons. First, statutory
minimization procedures require deletion of personal identifiers
in many cases. Second, it would be impossible to comply with
Privacy Act requirements without creating an index--a process
that would be very costly and counterproductive to privacy
concerns. Finally, disclosure of the fact alone that a telephone
conversation of a particular person had been intercepted and.
processed for SIGINT purposes by NSA could jeopardize SIGINT
sources and methods and would be a fact that the Agency could
neither confirm nor deny. The adverse consequences of declaring
all recordings made under (or in violation of) this Act to be
Privacy Act records also apply, in varying degrees, to the other
Agency functions discussed in this letter.
NSA conducts a number of SIGINT activities at the request
of federal officials directed against their communications for
counterterrorism purposes. Since counterintelligence is not
defined, it appears necessary to amend (c)(2) by adding "or
counterterrorism" in line 11, page 3, after counterintelligence.
NSA also conducts other SIGINT activities that either
intentionally or accidentally could monitor or record communica-
tions within the scope of Section 113(a)(2). For example, the
:agency or its associated military components may monitor U.S.
military exercise communications. Because of the nature of
exercises, it is rarely possible to secure consent of any party,
let alone all parties to a communication. As mentioned previously,
it is also possible that in the course of SIGINT activities con-
ducted outside the scope of FISA incidental overhears are possible.
Finally, NSA, or other intelligence agencies, could be authorized
by the Attorney General pursuant to E.O. 12333 to conduct elec-
tronic surveillance of a federal employee abroad, i.e., outside
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the scope of FISA. Such a surveillance could acquire communica-
tions within the scope of Section 113(a)(2). These problems
could be avoided by adding a new subparagraph to Section 113(b):
"(3) Without the consent of any party to a
conversation, the recording of, or listening-in upon,
such conversation may be conducted notwithstanding
subsection (a) if such recording or listening is
conducted against communications outside the scope of
Omnibus Crime Control and Safe Streets Act of 1968 (18
U.S.C. 2510 et seq.) or the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), is
conducted by an agency in the Intelligence Community,
and is conducted pursuant to guidelines approved by
the Attorney General."
The second of the Agency's primary missions that would be
affected by your proposed statute is communications security
(COMSEC). COMSEC means protective measures taken to deny
unauthorized persons information derived from telecommunications
of the U. S. Government, including certain contractors of the
Government, related to national security and to ensure the
authenticity of such communications. Such protection results
from the application of security measures (including crypto
security, transmission security, emissions security) to
electrical systems generating, handling, processing, or using
national security or national security related information. It
also includes the application of physical security measures to
COMSEC information or materials. Systematic examinations of
telecommunications are carried out to determine the adequacy of
COMSEC measures, to identify COMSEC deficiencies, to provide
data from which to predict the effectiveness of proposed COMSEC
measures, and to confirm the adequacy of such measures after
implementation. COMSEC monitoring is an essential part of such
examinations, and is conducted pursuant to detailed guidelines
approved by the Attorney General. COMSEC monitoring is the act
of listening to, copying, or recording transmissions of
Executive Branch official telecommunications, including the
communications of certain contractors, to provide technical
material for analysis in order to determine the degree, of
cryptographic or transmission security being provided to these
transmissions. This monitoring is only infrequently conducted
and notice is required to be provided to persons utilizing
communications systems subject to such monitoring. COMSEC
monitoring must be exempted from the prohibitions in your bill.
None of the exemptions included in H.R. 4620 as introduced
covers COMSEC monitoring. I propose that the tollowing
paragraph be added under subsection (c):
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"(6) The recording or listening-in is performed by or under
the authorization of the Executive Agent for Communications Security
for the purpose of communications security (COMSEC) monitoring
to obtain material for analysis in order to determine the adequacy
of COMSEC measures, to identify COMSEC deficiencies, to provide
data from which to predict the effectiveness of proposed COMSEC
measures, and to confirm the adequacy of such measures after
implementation. Such monitoring shall be conducted pursuant to
guidelines approved by the Attorney General."
NSA is also authorized to monitor and record communications
to train its personnel and to test its equipment. To protect
private citizens from such activities a preferred target for
such monitoring is Government telecommunications. While existing
procedures also state a preference for consensual monitoring, it
is rarely possible to assure that all parties to these communica-
tions consent. While the FISA authorizes monitoring for these
purposes the scope of FISA is much narrower than the scope of
H.R. 4620. F'ISA only affects monitoring which constitutes
electronic surveillance as defined in 50 U.S.C. 1801(f)(l)-(4),
i.e., in general terms, electronic surveillance in the United
States. II.R. 4620 would also affect monitoring which occurred
abroad. To avoid the unintended impact of the unequal scope of
these statutes, I propose the following paragraph be added under
subsection (b) after inserting "(1)" after "(b)":
"(2) Without the consent of any party to a conversation the
recording or listening-in may be performed notwithstanding sub=
section (a) by a federal agency to train personnel in the use of
electronic surveillance equipment or to test the capability of
electronic equipment. The Attorney General shall approve pro-
cedures for such recording or listening-in consistent with the
criteria and limitations of 50 U.S.C. 1805(f)(1) and (3)."
Recording or listening-in is performed by NSA employees for
public safety and service monitoring purposes on telecommunica-
tions systems used at NSA to support SIGINT and COMSEC operations.
The recordings resulting from such monitoring often contain highly
classified information or information that, even if unclassified,
may be withheld from disclosure by the Agency under section 6 of
the National Security Agency Act of 1959, as amended. ,50
U.S.C ?402 (note). Subsection (e)(2) of H.R. 4620 should be
amended by adding after "subsection (c)" on line 8, page 6, the
following clause:
"except such operations conducted to support the activities
of the National Security Agency."
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Representatives of the National Security'Agency would, of
course, be pleased to meet with you to discuss the concerns set
forth above. My telephone number is 688-6705.
Sincerely,
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