Sales Comments in International Business Times News

In an International Business Times News article, Professor Nathan Sales comments on data collection, saying that for a grand jury to acquire information, "there has to be some plausible nexus between the information you seek, the subject of the information you seek, and the subject of your investigation. Relevance is a concept that measures the connection between two different data sets. You can't go on a fishing expedition."

Since the adoption of the USA Patriot Act subsequent to September 11, 2001, some members of Congress have questioned whether the executive branch and the nation's spy agencies have been given too much leeway in their ability to gain access to Americans' personal information, as evidenced most recently by last week's close vote on NSA surveillance, which failed to rein in the agency's data collection powers.

The Legal Theory Congress And The Intelligence Community Are Fighting Over, International Business Times News, July 30, 2013. By Pema Levy.

"Government officials concede that Section 215 adheres to the same relevance standard that limits grand jury investigations. Just like grand jury subpoenas, 'the concept of "relevance" is broad enough to allow for the collection of information beyond that which ultimately turns out to be important to a terrorist-related investigation,' said Robert Litt, general counsel for the director of national intelligence, in a speech at the Brookings Institution earlier this month, despite the fact that 'the scope of the collection' in the NSA's telephone records collection program 'is broader than typically might be acquired' by a grand jury.

"Under the NSA program, the government captures metadata – the numbers, times and durations of all domestic calls – but doesn't touch it until they have reason to believe that a particular number is linked to an investigation. At that point, NSA analysts use the database to analyze the behavior and social networks of the suspected number.

"Like Litt, defenders of the NSA's program insist that the relevance standard has not been changed – just the amount of information collected. Indeed, the phone records program relies not on broad collection but limitless collection. So to rationalize that under the relevance benchmark, the government has had to argue that unless all of the records are collected, the valuable ones cannot be identified. Apparently, the FISC has endorsed this point of view."

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