The NSA's Warrantless WireTapping

The former NSA official held his thumb and forefinger close together. “We are, like, that far from a turnkey totalitarian state,” he says. —Wired Magazine, April 2012 

BY TREVOR TIMM 
MARCH 21, 2012 
Courtesy Of "The Electronic Frontier Foundation"

Last week, in Wired Magazine, noted author James Bamford reported on an expansive $2 billion “data center” being built by the NSA in Utah that will house an almost unimaginable amount of data on its servers, along with the world’s fastest supercomputers. Part of the purpose of this new center, according to Bamford, is to store “all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital ‘pocket litter.’”

In the Wired article, Bamford interviewed former NSA official William Binney, a “crypto-mathematician largely responsible for automating the agency’s worldwide eavesdropping network.” Binney further shed light on the NSA’s warrantless wiretapping program, first exposed by the New York Times in 2005 and the subject of EFF’s long running suit Jewel v. NSA, which challenges the constitutionality of the NSA’s program.

The NSA claims it only has access to emails and phone calls of non-U.S. citizens overseas, but Binney provides more detail to the many previous reports by the New York Times, USA Today,New Yorker, and many more that the program indeed targets US based email records. In the 11 years since 9/11, Binney estimates 15 to 20 trillion “transactions” have been collected and stored by the NSA. From the Wired article:

He explains that the agency could have installed its tapping gear at the nation’s cable landing stations—the more than two dozen sites on the periphery of the US where fiber-optic cables come ashore. If it had taken that route, the NSA would have been able to limit its eavesdropping to just international communications, which at the time was all that was allowed under US law. Instead it chose to put the wiretapping rooms at key junction points throughout the country—large, windowless buildings known as switches—thus gaining access to not just international communications but also to most of the domestic traffic flowing through the US. The network of intercept stations goes far beyond the single room in an AT&T building in San Francisco exposed by a whistle-blower in 2006. “I think there’s 10 to 20 of them,” Binney says. “That’s not just San Francisco; they have them in the middle of the country and also on the East Coast.”

The Director of NSA, General Keith Alexander, testified at a House subcommittee hearing Tuesday and Rep. Hank Johnson (D-GA) grilled him on the details of the Wired story. He appeared to deny the main points of the article, including that the NSA was intercepting emails, phone calls, Google searches, and phone records of individuals in the United States—as well as the technical capabilities of the program’s software described by Binney. But perhaps more strangely, Alexander also seemed to claim the NSA did not have the technical ability to collect Americans’ emails and Internet traffic even if it weren’t required to get a warrant:

Gen. Alexander: In the United States we’d have to go through the FBI process, a warrant to get that and serve it to somebody to actually get it.

Rep. Johnson: But you do have the capability of doing it?

Gen. Alexander: Not in the United States.

Rep. Johnson: Not without a warrant?

Gen. Alexander: We don’t have the technical insights in the United States, in other words, you have to have something to intercept or some way of doing that. Either by going to a service provider with a warrant, or you have to be collecting in that area. We’re not authorized to collect, nor do we have the equipment in the United States to actually collect that kind of information. (emphasis ours)

In our lawsuits, EFF has provided evidence that the NSA operated a monitoring center out of AT&T’s switching facility in San Francisco that has the ability to do exactly what Gen. Alexander says the NSA can’t.  In light of all the evidence, it is hard to take comfort from Gen. Alexander’s apparent denial.  In previous discussions of the warrantless wiretapping program, the government has used crabbed and unusual definitions of words to make misleading statements that also seem like denials but turn out to be largely word games. 

In one prominent example, then Principal Deputy Director of National Intelligence Michael Hayden said in a 2006 statement: “Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations….”  Later, when confronted with evidence of a wider drift net program during his confirmation hearing, he explained “I pointedly and consciously downshifted the language I was using. When I was talking about a drift net over Lackawanna or Freemont or other cities, I switched from the word ‘communications’ to the much more specific and unarguably accurate 'conversation.'”    

Notably, the NSA’s interpretation of what it means to “collect” communications seems to be quite limited.  Under Department of Defense regulations, information is considered to be “collected” only after it has been “received for use by an employee of a DoD intelligence component,” and “[d]ata acquired by electronic means is ‘collected’ only when it has been processed into intelligible form[,]”  So, under this definition, if the communications of millions of ordinary Americans were gathered and stored indefinitely in Utah, it would not be “collected” until the NSA “officially accepts, in some manner, such information for use within that component.” 

The illegality of warrantless wiretapping, however, does not depend on when the NSA officially accepts the information or processes it into intelligible form (whatever that means).  Americans' privacy and constitutional protections do and should not hinge on word games.  We are looking forward to establishing, in the Jewel v. NSA case, a simpler proposition: that the government can’t spy on anyone, much less everyone, without a warrant.