USA Today On The NSA

Leslie Cauley of USA Today, not the obvious place to look for this sort of news, breaks a major story on a domestic NSA program:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

USA Today also provides a Q&A, so let's go to the bottom line:

Q: Is this legal?

A: That will be a matter of debate. In the past, law enforcement officials had to obtain a court warrant before getting calling records. Telecommunications law assesses hefty fines on phone companies that violate customer privacy by divulging such records without warrants. But in discussing the eavesdropping program last December, Bush said he has the authority to order the NSA to get information without court warrants.

If I had been forced to guess, I would have said that this is not legal, since (if I am recalling correctly the debate about the NSA warrantless program), even a pen trace that records only phone number called and not the content of each call requires a warrant.  I have no doubt we will see commentary about the legal aspects soon enough.

As to the timing of this leak, can it be a coincidence that Gen. Hayden, who oversaw this while at the NSA, is meant to face Senate confirmation for his appointment to head the CIA?

MORE:  Leslie Cauley is heavy talent coming out of left field, as it were - we infer a telecom background (rather than national security) from the fact that she has published a book on the breakup of ATT; her bio notes three Pulitzer nominations (with a fourth coming, we have no doubt):

Leslie Cauley is a telecom writer for USA Today. She has been a business journalist for more than twenty years, spending nine years as a staff writer and editor for The Wall Street Journal in New York. Over the course of her career, Ms. Cauley has been nominated for the Pulitzer Prize three times. She lives in Manhattan.

Lots of reaction to USA Today at Memeorandum.  Kevin Drum is not sure the program is illegal. [And neither is Cecil Turner in the comments, but he links to some relevant statutes.]

UPDATE:  Bush defends the program, or denies it, or something:

President Bush today denied that the government is "mining or trolling through the personal lives of innocent Americans," as Democrats expressed outrage over a news report describing a National Security Agency program that has collected vast amounts of telephone records.

The article, in USA Today, said that the agency did not listen to the calls, but secretly obtained information on numbers dialed by "tens of millions of Americans" and used it for "data mining" — computer analysis of large amounts of information for clues or patterns to terrorist activity.

Making a hastily scheduled appearance in the White House, Mr. Bush did not directly address the collection of phone records, except to say that "new claims" had been raised about surveillance. He said all intelligence work was conducted "within the law" and that domestic conversations were not listened to without a court warrant.

"The privacy of all Americans is fiercely protected in all our activities," he said.  "Our efforts are focused on Al Qaeda and their known associates."

Well - when Bush denies that the government is trolling through my personal life, does he consider my calling history to be personal?  And for that matter, do I?  Aren't these records sold to marketing companies, in some aggregated fashion?

At this writing, our "No Good Deed Goes Unpunished" file notes that the Times misspelled the name of the one company to balk at this program:

The article named those three companies as cooperating with the security agency's request; it said that Quest had refused to provide the information.

Sen. "Not Proven" Specter wants to hear from the telecom executives.

And Glenn Greenwald is also not sure of the law.  However, I will gloomily concede that he makes a good point about the salience of the Qwest experience, as described by USA Today:

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

I am not surprised by the decision to bypass the FISA Court.  But are they really telling us that the NSA could not produce an authorization letter from the Attorney General?  Or was the NSA just playing coy - since three companies had signed up without a letter, why involve the AG for Qwest?  Generally, shrewd bureaucrats know enough not to involve other bureaucracies unless absolutely necessary.

Well - if we find out that the Justice Dept never signed off on this program, I will be surprised, since they were involved in the overseas warrantless eavesdropping.  However, if the Qwest version is accurate, that issue of DoJ involvement is well worth pursuing.

Comments

[noah]

Of course the info so obtained is not usable in court...but if the patterns detected indicate possible terrorist activity it may point the NSA to monitor additional overseas phones than it would otherwise be aware of...more power to them...we don't really want to prosecute them anyway...thwart and/or kill them, hell yes.

[Jane]

Another day, another leaker.

How does this differ from the phone records you are able to buy over the internet, except for the scale?

[boris]

Of course the info so obtained is not usable in court

The FISA court of Review essentially ruled that FISA was only constutional to the extent that it provides a mechanism for the executive branch to convert foreign surveillance into admissable evidence usable by the judicial branch.

[Marcel]

So many leaks in the dike, and not enough fingers to plug them all. Not enough Swift Boaters to attack all of the leakers and all of the reporters who dig out the information. What is Big Brother to do?

[Appalled Moderate]

Leak here is probably not from the government but on eof the phone companies turning over records. Consider both who is writing the story and the number of people who would be involved in the data gathering.

the larger number of people invovlved in something like this, the more likely there will be a leak. Period.

[Sue]

You know, at this point, if I were the president, I would beg for an impeachment. Send me home.

[Al]

Hmmm. They have an "Is this Legal?" box. But they ignore the expert quoted in the main piece!

"Over the years, NSA code-cracking techniques have continued to improve along with technology. The agency today is considered expert in the practice of "data mining" — sifting through reams of information in search of patterns. Data mining is just one of many tools NSA analysts and mathematicians use to crack codes and track international communications.

Paul Butler, a former U.S. prosecutor who specialized in terrorism crimes, said FISA approval generally isn't necessary for government data-mining operations. "FISA does not prohibit the government from doing data mining," said Butler, now a partner with the law firm Akin Gump Strauss Hauer & Feld in Washington, D.C.

The caveat, he said, is that "personal identifiers" — such as names, Social Security numbers and street addresses — can't be included as part of the search. "That requires an additional level of probable cause," he said."

[Dwilkers]

The mystery of what the NSA program really involves deepens.

I'm trying to figure out how telephone records of "homes and businesses" and "amassing information about the calls of ordinary Americans" helps the NSA "detect terrorist activity" through analysis of calling patterns.

Analyzing the calling patterns of ordinary folks is going to help them detect terrorist activity? How? Are they talking about some sort of comparative analysis maybe?

I'm stumped.

[Cecil Turner]

Q: Is this legal?

Hmm, dunno. The generic prohibition of pen registers (chapter 206) without a court order specifically exempts FISA, but FISA doesn't seem to cover it. It's specifically exempted under the criminal code for intercepts:

(h) It shall not be unlawful under this chapter -

(i) to use a pen register or a trap and trace device (as those terms are defined for the purposes of chapter 206 (relating to pen registers and trap and trace devices) of this title); or

And there's another exemption under (f) that might apply (and says chapter 206 doesn't apply to foreign intelligence stuff). Better find a lawyer to sift through that pile.

[JohnH]

How does Leslie Cauley know that they are "ordinary Americans?" Did her source tell her this? Is there a way to tell from phone numbers if one is an "ordinary American?"

[JohnH]

Oh, I get it. The MSM wants the gov't to get a court warrant for each of the "tens of millions" of phone numbers. Then, since the MSM is 100% in favor of going after terrorists, it would be OK to count the number of times certain phone numbers were used to call certain countries.

[clarice]

I think this may be hooey. AJ Strata has a great deal about this on his site today. Let us say you are trying to make a pattern analysis--not picking who you are focusing on. Say a camera at an intersection tracking traffic, because you are trying to see if you need to change the traffic light timing. You are analyzing a pattern, not looking at license plates of cars going past. And that is what I think this is..selecting enough random traffic patterns so that they can determine what is usual and what is unusual. Period.

I think the more interesting story is this one. http://www.msnbc.msn.com/id/12727867/

Cong. Hinchey asked the DoJ's Office of Professional Responsibility (OPR) to determine if any lawyers in the Dept broke the law in connection with the NSA surveillance program. OPR has responded that they cannot do this because NSA will not give the lawyers in that office security clearances so that they can carry out the investigation. The back story is this:Shrewd observers in DC have believed from the nature of the leaks, that many of them came from high up in the DOJ..The Deputy Atty General's office which handled the program. (Some also seemed to come from COngress and the FISA Court itself.)
To my mind, the Administration has finally caught on and is at the match point of the game.

[Tom Maguire]

As to the source being from the telecom side rather than the intel community, Ms. Cauley's background is an obvious hint.

And Kevin Drum had this story April 8:

WHAT THE NSA IS DOING....A couple of months ago the Electronic Frontier Foundation filed a class action suit against AT&T for violating its customers' privacy by cooperating with the NSA's domestic spying program. On Friday, they released a statement from a former AT&T technician named Mark Klein who saw what the NSA did in AT&T's San Francisco office:...

[Marcel]

Clarice, they are probably watching you, your clients, your friends. You are probably OK with that, since you support just about everything that this Administration does and defend them eloquently. But would you be OK if it was a Democrat administration?

[clarice]

If they want to use my call pattern without keeping private info as part of a massive data base to determine calling patterns, I have no problem with that. Everything else I do from buying books on Amazon to using my grocery card discount card works just like that to determine in those cases, buying patterns. (Belong to Amazon? Ever get emails from them suggesting booke you might enjoy. How do they know you might be interested? Because they analyze buying patterns of millions of people. And they know people who like Book A will often be interested in Book B.)

[ordi]

What did John Conyers know and when did he know it?

The front page to his web site says this:

NSA's Illegal Warrantless Wiretapping Update

Coming soon:

Developments regarding the National Security Agency's illegal warrantless wiretapping.

http://johnconyers.com/

[maryrose]

Marcel:Clinton had 300 FBI republican files his WH was perusing and his wife lied about knowing about it. Where were your complaints then? Oh a dem admin...

[kim]

Ah, Marcel, you'd give your merchants what you'd deny your soldiers? De bon marche.
======================

[Matt]

Clarice,
Data Mining for terrorists isn't as easy as data mining on Amazon. On Amazon you have already made choices that help them cull the information. Short of having one known terrorist and looking at that person's calls, I don't see how massive data mining really works.
Seems like a great way to generate a ton of false positives, thus making the jobs harder.

[Marcel]

How do we know what information they are gathering and keeping? How do we know that it isn't being used to gather evidence for legal prosecutions? How do we know that the info isn't being used for political reasons? With the NSA doublng their budget in 2 years, there is a lot of opportunity for misuse of information. And with almost no accountability.

[ordi]

IN A BOLD AND CONTROVERSIAL DECISION, the president authorized a program for the surveillance of communications within the United States, seeking to prevent acts of domestic sabotage and espionage. In so doing, he ignored a statute that possibly forbade such activity, even though high-profile federal judges had affirmed the statute's validity. The president sought statutory amendments allowing this surveillance but, when no such legislation was forthcoming, he continued the program nonetheless. And when Congress demanded that he disclose details of the surveillance program, the attorney general said, in no uncertain terms, that it would get nothing of the sort.

In short, President Franklin Delano Roosevelt charted a bold course in defending the nation's security in 1940, when he did all of these things.

As they say read the whole thing.
http://www.spectator.org/dsp_article.asp?art_id=9790

[kim]

Well, Marcel, you can choose to be paranoid, or you can choose to believe that the people with the power have sense enough to know that if they misuse it, it backfires. Are you projecting, or do you not have that sense?
=====================================

[Sue]

Marcel,

One thing you can count on, if it is being used for political purposes, the democrats are the ones that are doing it or it would have already been leaked.

[clarice]

You make all sorts of choices every day and they are all made into bundles for understanding patterns of human behavior. I see nothing in these pattern developments that are usable in court. You are not being charged with calling Pakistan when no one else does.

[Laddy]

Matt, diagnostics have false positives. It's the nature of the beast. If you know the outcome with certainty, there is little reason to test to discern the outcome. If the test is so insensitive to result in no false positives, it is likely too insensitive to detect many positives as well. The cost of missing a positive is greater in this case than identifying false positives to further rule out. I would imagine they are simply correlating international calls to and from U.S. numbers. If a pattern emerges, it's flagged for further investigation. What would be interesting to know is if NSA has access to call records in other countries as well. I suspect calls go from cell to cell. A U.S. call to a German number to a Saudi number, etc. If the only database NSA has is the U.S. one, then they have to detect the pattern to the German exchange and then find a way to track from there. I don't know for sure, but I suspect there is no identifying information with the phone number which probably makes it legal. I also don't think General Hayden would want to go up to the Senate unless he knew his duckies were all in a row, legalwise. Didn't we already know all this back when the NSA program came up last time. This seems like news recycling again to me.

[ordi]

Marcel,

This is being happening since right after 911. Don't you think if it was being done for gathering evidence for legal prosecutions, or it was being used for political reasons, we would have heard of these prosecutions and political reasons by now? One would think so. What are they waiting for? the 2004 Ellection would have been a good time, why did they use it then? What about the upcoming 2006 election?

[ordi]

Sorry it should have been

why DIDN'T they use it then

[kim]

Laddy, I'm pretty sure the access is to a lot of international stuff, which routes through US owned equipment. That may be one reason for the telecommunications writer rather than an intelligence one.
============================

[clarice]

"When any of the tens of millions of Capital One credit card customers call the company, the firm’s computers correlate the data they have on their buying patterns and recent purchase activity to predict why they are calling. The call is routed to just the right customer service representative who knows with near certainty what he needs to do to solve their problem and what additional products or services to offer that their likely to buy. All of this happens in a fraction of a second.

ChoicePoint is one of nation’s largest brokers of personal information. They can reach out and grab criminal records, motor vehicle records, credit histories, business records and a wealth of other data about you. Unlike the government, ChoicePoint allowed personal records of nearly 160,000 citizens to be compromised last year.

You hate telemarketers so you signed up for the Do Not Call Registry. Then you turned around and called in a take-out order for pizza, signed up for the grocery store discount card, pet store discount card, coffee shop discount card, etc. Guess what? Those companies consider those transactions as the establishment of a business relationship, so by the rules they can call all they want. If the fine print in their privacy policy says they’ll share your information with other businesses then you’re going to get more calls and be stored in more databases.

Unlike the government, private business will almost never get rid of your information as long as there is a hope of selling you something. Maybe you didn’t want the personal loan or the vacation package, but an analysis of your recent buying habits shows the purchase of a lot of baby clothes and diapers; watch how fast you start getting offers for life insurance or cord-blood storage services. And when they’ve tapped you out they’ll sell your data itself to someone else for one last buck.

Terrorists want to separate us from the corporal world. Does it make any sense not to"http://blog.groupintel.com/2006/02/03/intelligence-sold/

[ordi]

You just have to love Mac! He writes:

By the way....a bit of bad news though for the sources of the USA Today article, per a tip, your identities are known to those who care.

He has lots of other stuff on this! CHeck it out.

http://macsmind.blogspot.com/2006/05/nsa-leaking-in-usa-today_11.html

[windansea]

LONDON - The suicide bombers who killed 52 passengers on London’s transit system last year contacted someone in Pakistan just before striking, Britain’s top law enforcement official said Thursday.

http://news.yahoo.com/s/ap/20060511/ap_on_re_eu/britain_bombings

someone in pakistan....this is where the NSA programs would help

[windansea]

London had been operating on the theory that the bombers were just home grown splodeydopes

[clarice]

Thanks ordi--Mac sayshttp://macsmind.blogspot.com/2006/05/nsa-leaking-in-usa-today_11.html this was a deliberate leak designed to entrap the leakers and is related to the other--I think much more important story--that NSA refused to give clearances to DoJ's Office of Professional Responsibility.

[Sue]

Fox asked and answered the why now...

Time magazine reporter Mike Allen told FOX News it's not news that the NSA is developing a phone number database. Rather, the interesting part is that the agency was "tapping into the backbones of these communications companies."

However, that too doesn't seem to be new information. The New York Times, in its Pulitzer Prize winning reporting, reported last December that the telecommunications firms had been cooperating with the government.

[ordi]

Clarice,

I agree the NSA refusal to give clearances to DoJ's Office of Professional Responsibility is a bigger story. It means Bush is not going to take this anymore!

[ordi]

Clarice,

I agree the NSA refusal to give clearances to DoJ's Office of Professional Responsibility is a bigger story. It means Bush is not going to take this anymore!

[Tom Maguire]

Short of having one known terrorist and looking at that person's calls, I don't see how massive data mining really works.

I mostly agree (mainly, I have no idea how this would work, either), but - wouldn't they have good records of the 19 9/11 hijackers?

And there a few other known terrorists that have been picked up.

I think you have twenty starting needles in a 200 million record haystack, but it might lead to something.

[windansea]

go get em Tony!

Snow issues detailed rebuttals to media coverage of the president
PDF | Email
Bill Sammon, The Examiner
May 11, 2006 7:00 AM (6 hrs ago)

WASHINGTON - New White House Press Secretary Tony Snow is starting off in a combative mode against the press by issuing detailed rebuttals to what he considers unfair coverage of Bush.

“The New York Times continues to ignore America’s economic progress,” blared the headline of an e-mail sent to reporters Wednesday by the White House press office.

Minutes earlier, another e-mail blasted CBS News, which has had an unusually rocky relationship with the White House since 2004, when CBS aired what turned out to be forged documents in a failed effort to question the president’s military service.

“CBS News misleadingly reports that only 8 million seniors have signed up for Medicare prescription drug coverage,” Wednesday’s missive said. “But 37 million seniors have coverage.” On Tuesday, the White House railed against “USA Today’s misleading Medicare story.”

http://www.examiner.com/a-104890~Snow_issues_detailed_rebuttals_to_media_coverage_of_the_president.html

[kim]

Maybe Bush finally hired an advocate.
===================

[windansea]

in a related interview Bin Laden told interviewers that he was switching to Qwest

[Bill]

They are probably using statistical analysis to determine normal patterns so as to distinguish them from abnormal patterns in communications networks.

[clarice]

That's what I think, Bill.

[David in NY]

"It means Bush is not going to take this anymore!"

Poor Bush! Those Democratic majorities in Congress have just been killing him! If only Congress were firmly in Republican hands, then he wouldn't have a problem in the world! I mean, he hasn't made a single mistake yet!

[clarice]

I believe the poster was referring to the Fifth Column in the ,mandarinate, David in NY.

[windansea]

OT

DVD sniffing labradors fight Piracy!

As part of a project promoted by the Motion Picture Association of America, Inc. (MPAA), FACT instigated the training of two black Labradors named Lucky and Flo by one of the world's leading experts in the field whose other clients include police, fire and rescue service. The dogs were trained over an eight month period to identify DVDs that may be located in boxes, envelopes or other packaging, as well as discs concealed amongst other goods which could be sold illegally in the UK. These DVDs are often smuggled by criminal networks involved in large scale piracy operations from around the world."

http://www.spacegrinder.com/article8.html

[Fritz]

I tend to agree with Sen. John Cornyn, R-Texas who said, "One of the reasons the administration doesn't tell more members of Congress about such programs is because Congress leaks." Exactly right, and I advocate that the executive cut the Congress out of the loop altogether. Really the Congress is just for show anyway, call it democratic window-dressing on the emperor's palace.

And to you, the citizen I say, you have nothing to fear from your government unless you are doing something wrong. Have you made phone-calls to terrorists? Have you ordered Zanku Chicken to go? Have you called a pharmacy in Canada? Have you phoned a full-release masseuse? Have you dialed a registered Democrat? Have you called your newspaper? If you've answered "no" to all these questions then just relax already.

So why is the government tracking your calls if you're an honest proletarian? Well it's a little complicated. It's all a matter of contrast. See, the terrorists are the subjects, and you are the background. So if we only monitor the terrorists, the picture we paint is like a polar-bear in a snow-storm, you just can't see him. That's where you come in. You are the background that must be viewed to bring the terrorist in to sharp relief.

So don't worry. Qwest communications should worry. Those traitors have refused to comply with the decrees from Washington. Perhaps Osama Bin-Laden will do an ad for them, I'm sure they'll appreciate the new business.

[Patrick R. Sullivan]

'Short of having one known terrorist and looking at that person's calls, I don't see how massive data mining really works.'

That appears to be what NSA is doing. A caller to FOX radio today seemed to know all about the program.

He said the telephone numbers are in a data base gathering dust until NSA gets a 'hit' from, say, a captured terrorist's cell phone in Baghdad. They want to be able to follow up immediately on calls made from and to that cell phone. Which they can't do without the data base.

Here's the beginning of an April 13, 2006 LA Times story:

'MONTPELLIER, France — The cellphone's trail led from bloodstained Fallouja to the engineering school here, a modern campus where researchers in white coats stroll past labs and the breeze rustles through trees in courtyards dotted with pine cones.

'Two years ago French investigators, aided by U.S. intelligence, detected calls from Iraq to a central figure in a suspected extremist cell in Montpellier. French intelligence officials say the calls came from a militant leader in Fallouja involved in the grisly killing of four American military contractors by a mob on March 31, 2004, an incident that became an icon of the savage conflict in Iraq.'

[JM Hanes]

TM

"I think you have twenty starting needles in a 200 million record haystack, but it might lead to something."

I think that's a misperception. You can't do datamining on a limited basis; there's no way you can even begin to identify patterns until you've got hug amounts of data to work with. Your success rate has less to do with the number of needles you find as a function of data sifted, than it does with the speed at which you become able to identify them -- not to mention the fact that datamining may well be your best/only chance to find them at all. The whole point of terrorism is that it doesn't take but a couple of needles in the first place, no?

I understand the various concerns about privacy and potential abuse, but unfortunately, datamining and like intrusions are the inescapable consequence of tasking the government with the preventing future attacks.

[Cajun Kate]

For all of you who are so outraged that your personal liberty is being violated, do you have any idea of all the personal info the IRS has on you? And you're worried about this, give me a break

[JM Hanes]

I think it was the head of Cisco who once said something like: You have no privacy, you just don't realize it yet. I don't think it was a recent assessment either.