- The Washington Times - Saturday, July 8, 2006

For three reasons, there is a sad quality in recent headlines concerning the National Security Agency sucking billions of telephone records into a monster governmental database and stories of police buying telephone records from information brokers to save time.

• First, and most important, these concerns can undermine investigation techniques which actually can work and enjoy public support. The debate over the legality of this extreme NSA intrusion, the lack of oversight of NSA methods and the selling of private information, seriously endanger public belief in and acceptance of necessary telephone data searches. Wholesale intrusion erodes public trust not only in security and intelligence services but also in telephone companies, whose executives now find their companies face billion-dollar lawsuits.

• Second, such a trawl through private records is not only unnecessary to achieve results from telephone investigation but worse: If as reported, the NSA data are not complete, it would be very difficult to identify meaningful call patterns of, for example, a terrorist cell.

All the data should be left where they are and searched from there with speed and accuracy. The key is all the data. Not some. Not quite a bit. Nothing less than all. Without all the records, search patterns are, at best, flawed.

• Third, since the NSA will seldom share its entire “product” immediately with federal, state and local police, those on the frontline of any operations, it undermines the latter’s ability to see the full picture and do their jobs accordingly. Further, law enforcement is frustrated by the time it takes telecoms to respond to subpoenas, so they turn to unreliable and unmonitored third parties to obtain required data.

It would be far more efficient and acceptable to have telephone data investigation systems directly support law enforcement and the intelligence community, rather than have some data collected in a top-secret supercomputer and the rest obtained by dubious means.

There is much debate about the legality, even constitutionality, of the NSA trawl. Some argue the FISA laws already accommodate these data-collection exercises or, if not, it is a straightforward task to propose amendments. This would be a justified debate if one could at least argue it works. But does it really? That’s a key question I hear few ask.

FBI Director Robert Mueller, said in April 2002: “[The September 11 hijackers] used hundreds of different pay phones and cell phones, often with prepaid calling cards that are extremely difficult to trace. In short, the terrorists had managed to exploit loopholes and vulnerabilities in our systems, to stay out of sight, and to not let anyone know what they were up to beyond a very closed circle.” Mr. Mueller, they still are. But now, as you know, they use voice-over Internet protocol (VOIP) and other techniques to communicate.

So we know from Mr. Mueller and from numerous terrorist attacks around the world that terrorists and organized criminals are unlikely to use the registered services of the major telecom companies in recent headlines. Plus, there are hundreds, if not thousands, of different communication companies carrying calls to, from and via the U.S., so gathering billions of records from a few major telecoms is, in my view, less than effective while risking crucial public support.

It would be far more useful to have a system that offers speed, accuracy and security. It needs to be able to identify a potential threat before it becomes a forensic exercise. It needs to be quickly adaptable to meet the continuous changes in communications technology. It needs to provide “actionable intelligence,” i.e., law enforcement requires a heads-up a couple of minutes before the SWAT team kicks in the wrong doors and blows a life-at-risk operation.

I was involved in supporting Scotland Yard in London on such a case where real-time, targeted telephone data, which I provided, prevented a tragedy with only minutes to spare. It turned a potential disaster into a lifesaving operation.

Also, in democracies, the public demands a level of oversight in which they can have faith. We should not lose sight that this new NSA effort is therefore moving us away from a noncontroversial system, long enjoyed by U.S. law enforcement, to one that is now so sensitive it is only immediately available by the most secret intelligence service (which, by the way, has no law enforcement duties or authority). Simultaneously, law enforcement is coming to rely on unaccountable, unsecured information brokers to obtain case-sensitive information. If they can pay for a broker to get the information, do you not think a criminal or terrorist can also pay them to get the phone records of a law enforcement official or prosecutor?

In summary, a high-tech telephone data investigation system needs secure audit trails to prevent misuse and to allow judicial and political oversight. It needs to be flexible enough to accommodate the privacy laws of different countries to assist international cooperation and swift intelligence exchange among allies. It needs to be secure to protect both the telecoms and law enforcement from outside leaks and infiltration. And finally, it needs to provide actionable intelligence, in the form of real-time, lawful data retrieval, directly to all law enforcement.

It may sound impossible, but believe me it isn’t. I should know: We built one.

Robert Czapiewski is a director a private company in Cambridge, England, which has created a call data investigation system for law enforcement.

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