Parsing the "professionals"

The U.S. Justice Department has told a court in Florida that the government does not secretly track the location of Americans' cellphones as part of its massive phone surveillance dragnet, but asking experts to believe that assertion has proved to be another matter.

The basic privacy question raised in the recent revelations -- has the government been tracking American phone users? -- remains muddied by a vaguely worded, top-secret court order and an ensuing series of carefully worded denials.
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The government's response to Lewis' request, filed with the court last Wednesday, says the NSA does not have such a capability: The agency didn't collect location data under the phone surveillance program, so there were no records to turn over, the court filing said.

"The program described in the classified [Foreign Intelligence Surveillance Act court] order cited by the defense did not acquire such data," the filing stated, adding that "the government has no reason to believe" location data were being held by the government that could be turned over for the criminal case.

Deputy Atty. Gen. James Cole made a similar statement about the limits of the phone metadata program at a U.S. House Intelligence Committee hearing last Tuesday.

"This is just like what you would get in your own phone bill," Cole testified. "It is the number that was dialed from, the number that was dialed to, the date and the length of time. That's all we get. ... We don't get any cell site or location information as to where any of these phones were located."

But surveillance experts still found themselves poking through the officials' latest statements and looking for trap doors and subtle elisions, checking to see whether the government had camouflaged wide-ranging surveillance capabilities behind a few carefully worded denials.

Much of the uncertainty regarding the government's latest statements resides in the original FISA court order to Verizon. The top-secret order, issued in April, compelled Verizon to turn over "all call detail records," including "comprehensive communications routing information."

Specialists queried by the Los Angeles Times couldn't say with certainty whether the language used in the order meant that Verizon was clearly compelled to turn over location data to the government, though many assumed location data would normally be included in such a broadly worded request.

"Given that the FISA Court order says that the government can have location data, it's quite odd to hear the government claim that it doesn't 'collect' that data," said Susan Landau, a former Sun Microsystems engineer and an expert on digital surveillance.

"They certainly have the technical capacity and assert they have the authority," said Kurt Opsahl, a senior staff attorney with the Electronic Frontier Foundation, a privacy advocacy group. "Given the history of deceptive and misleading statements from the [national intelligence director], I cannot take the government at its word that, despite its technical capacity and belief in its authority, it simply chooses not to track location."