The NSA: Spying on you?

Agency's power, technological prowess raise privacy concerns

The secretive agency is headquartered in Fort Meade, Maryland.

By David Ensor
CNN National Security Correspondent

FORT MEADE, Maryland (CNN) -- The National Security Agency eavesdrops on literally billions of communications worldwide on behalf of the U.S. government, garnering the secrets of other countries but raising fears that the agency may be abusing its power.

"It is secrets worth knowing; it is data no one else can get," said Maureen Baginski, director of the NSA's Signals Intelligence (SIGNIT) program.

But privacy advocates fear that the awesome power of the NSA's technology and its secrecy does not have enough outside oversight to prevent abuse of its tools and information.

"What's happening, of course, is that the NSA says, 'Trust us, we're the government. We won't abuse the law,'" said Barry Steinhardt, associate director of the American Civil Liberties Union. "Of course, what they're really saying is: 'Trust us, we're the government spies and we won't abuse the law,' but since there is no real check on them, there is no way to know that."

The 1998 movie "Enemy of the State," starring Will Smith and Gene Hackman, portrayed the NSA as an evil Big Brother spying on Americans. The plot involves the NSA's deputy director, who oversees the murder of a congressman due to his opposition to a bill that the NSA official wants passed.

A Washington lawyer unwittingly comes into possession of evidence of the murder, and the NSA official turns the full force of the agency's eavesdropping capability on the lawyer's life. In reality, the NSA is prohibited from spying on U.S. citizens unless it can prove to a special court that there is probable cause to believe that a citizen is committing espionage or other crimes as an agent of another government.

Lt. Gen. Michael Hayden, the NSA's director, saw the movie in a South Korean theater filled with other military personnel while he was under consideration for his current job. The movie did not paint a positive picture of the NSA, he said.

"I made the judgment that we couldn't survive with the popular impression of this agency being formed by the last Will Smith movie," Hayden said.

Hayden sensed an image problem. That recognition in part explains why the NSA decided to let CNN inside the agency to see where code breakers work to crack the secrets of other nations and where code makers protect U.S. secrets.

Hayden said he wants to ensure that the NSA isn't viewed as trampling on the privacy rights of U.S. citizens. He said the nature of the NSA's mission requires it to be a secretive agency. But he added that the agency is trying to make certain that Americans know it follows the law while enhancing U.S. liberty and security.

"Could there be abuses? Of course, there could, but I am looking you and the American people in the eye and saying there are not," Hayden said.

Director Michael Hayden set out to improve the NSA's public image.

Oversight reforms passed in the 1970s

Hayden said the NSA has not spied on Americans since the 1970s. Congressional committees, led by U.S. Sen. Frank Church and U.S. Rep. Otis Pike, found that government agencies, including the NSA, had eavesdropped on actress Jane Fonda, Dr. Benjamin Spock and other anti-Vietnam War activists.

As a result, Congress passed the Foreign Intelligence Surveillance Act, which created a procedural structure with a special court for considering and approving certain surveillance activities that occur in the United States and involve rights guaranteed by the Constitution such as the ban on unreasonable search and seizure.

The House and Senate also established intelligence oversight committees, and then-President Gerald Ford issued an executive order establishing a formal system of intelligence oversight by the executive branch.

"After Church and Pike, on this question, the ball and strike count on the agency is no balls and two strikes," Hayden said. "We don't take any pitches that are close to the strike zone. We are very, very careful. We can't go back to the American people with, 'Oh, well, we're sorry for this one, too.' We don't get close to the Fourth Amendment."

But the ACLU's Steinhardt said the laws dealing with these issues need to be revised and congressional intelligence committees don't exercise much oversight.

"Unfortunately, the Congress -- which is the only entity that can really ask these questions, has not so far asked them ... in an aggressively satisfactory way," he said.

The technological advances that have increased the ability for people to communicate also increase the possibility that the NSA may run across more U.S. citizens while performing its mission. When eavesdropping on a drug ring in Colombia, separating other countries' nationals -- who can legally be bugged -- from U.S. citizens or residents is not always easy.

Domestic law enforcement agencies also pressure the NSA to help out with issues such as drug trafficking.

"Increasingly, intelligence agencies are becoming domestic law enforcement agencies," Steinhardt said. "The excuse for that is that some law enforcement issues are international, like the drug trade, for example."

The NSA's listening station in England sparked controversy, with allegations that the United States engaged in economic espionage to help U.S. companies against European competitors.

Staying on the safe side of the law

Hayden acknowledges the U.S. status as a leader in telecommunications and business increases the odds that the NSA will come up against what he called "protected communication." But he said the agency has clear rules dealing with this issue and it can use technology to help do its job legally.

"It gives us the ability to filter very early in the process, and so the same technology that creates problems is the technology that allows us to stay on the safe side of the law," he said.

In certain cases, the NSA can look into the activities of U.S. citizens or residents if it believes they are acting as agents for another country. The agency must first get the permission of a special court created by the Foreign Intelligence Surveillance Act and then get the U.S. attorney general's consent.

Hayden said the burden of proof is on the NSA when seeking such authorization. He declined to say whether the agency had ever been turned down.

"It's hard for me to get into operation matters," he said. "Let me just say that we are very careful about what we ask for, that we have to be very confident that we have a very strong case, and therefore, when we go forward, we think we have very powerful arguments, and our track record reflects that."

Economic espionage?

In Europe, the debate about the NSA and privacy centers on the surveillance facilities in Menwith Hill, England. A 1999 European Parliament report suggested the United States might have conducted economic espionage to help American companies against European competitors. Hayden dismissed the allegation.

"That is absolutely not true," he said. "Everything we do is for a foreign intelligence purpose, and everything we produce is handed to an official agency of the U.S. government that is authorized to receive that information. We do nothing on behalf of American enterprise; we do nothing to gain advantage for American industry."

However, Hayden said if the NSA detects criminal activity, it is required by law to pass the information to other U.S. agencies such as the State Department. If the NSA learns that an overseas company is offering bribes to get a contract, that information does not remain a secret.

No matter what the scenario is, however, the issue of balancing privacy with the need to garner intelligence is unlikely to go away for the agency.

"It's a battle that goes on behind the lines in a great deal of secrecy, and how close they get to the line or whether they slip over sometimes is a matter that has to be watched closely," said James Bamford, author of "Body of Secrets," a forthcoming book on the NSA.

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