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Thursday, June 06, 2013

Re: Greenwald's blockbuster: How do they know which calls are associated with terrorism?

by digby

By now just about everyone has heard about Glenn Greenwald's blockbuster scoop in the Guardian. It was even featured this morning on the chirpy local morning news between diet tips and frittata recipes so even non-political types are going to hear about it. In case you haven't, Greenwald revealed that the NSA has been requiring Verizon (and probably other carriers) to give the government massive amounts of data about its customers communications.  Read the article, it's very concise and quite chilling.

If you're one who has followed this sort of thing for a while, you'll recall that Senators Udall and Wyden have been practically blinking in Morse Code to try and warn the public that something truly nefarious was going on for some time, but we couldn't know exactly what they're talking about because it's classified and their hands have been tied:
The law on which the order explicitly relies is the so-called "business records" provision of the Patriot Act, 50 USC section 1861. That is the provision which Wyden and Udall have repeatedly cited when warning the public of what they believe is the Obama administration's extreme interpretation of the law to engage in excessive domestic surveillance.

In a letter to attorney general Eric Holder last year, they argued that "there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows."

"We believe," they wrote, "that most Americans would be stunned to learn the details of how these secret court opinions have interpreted" the "business records" provision of the Patriot Act.
The administration replied to this exposé in breezy fashion saying there's nothing to see here, it's no big deal,  nobody's phones are being tapped and it's just a bunch of numbers. But they also made a strange logical error. Marc Ambinder posted the administration's talking points:
*On its face, the order reprinted in the article does not allow the Government to listen in on anyone's telephone calls. The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to metadata, such as a telephone number or the length of a call.

* Information of the sort described in the Guardian article has been a critical tool in protecting the nation from terrorist threats to the United States, as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.
It would be interesting to know how that works because if they already know who the terrorist suspects numbers are, they have no need for all this data, they can just get a normal warrant. So one must assume that despite their protestations to the contrary they are using this to identify, suspects which logically means the identifying information is somehow being accessed. This follow-up article in the Guardian explains that it's not difficult to do:
The administration stressed that the court order obtained by the Guardian relates to call data, and does not allow the government to listen in to anyone's calls.

However, in 2013, such metadata can provide authorities with vast knowledge about a caller's identity. Particularly when cross-checked against other public records, the metadata can reveal someone's name, address, driver's licence, credit history, social security number and more. Government analysts would be able to work out whether the relationship between two people was ongoing, occasional or a one-off.
Fisa court orders typically direct the production of records pertaining to a specific, named target suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets. The unlimited nature of the records being handed over to the NSA is extremely unusual.
This is why the government's explanation doesn't make sense. Why would they need all this data unless they're fishing for the identities of suspects based upon some unknown criteria? FISA already allows them to track suspects.

When the news broke last night it was quite interesting to see the reaction on twitter. There was quite a bit of blasé ,"who cares, terrorism" and a fair amount of "they've been doing this stuff for years," but I was struck by just how stunned so many people were over this. I certainly knew the FISA law had been renewed and assumed it had been active over the past few years. But the scale of this surprised me --- I thought they had developed something much more finely tuned and narrow than this sort of dragnet. (I was even more surprised to learn that this leaked document might possibly be just a pro-forma renewal of something that's been going on for years. I don't think that's been confirmed yet, however.)

It apparently surprised a lot of people, including this guy:


Must read Emptywheel on this. She also points out the contradiction in the government's "talking points" and asks a very pertinent question: if this is no big deal, why all the secrecy? It would give nothing away to admit that they are looking at all calls. If there truly is no identification involved, why would any would-be terrorist change their behavior? It really doesn't make a lot of sense. And yet, as Wheeler points out, the administration has gone to unbelievable lengths to prevent the public from knowing about how this is being done, and contrary to their attempts to lay the blame on all three branches, they have systematically made it impossible to use the judicial system in an ordinary fashion to determine this program's constitutionality:
The Administration wants you to believe that “all three branches” of government have signed off on this program (never mind that last year FISC did find part of this 215 collection illegal — that’s secret too).

But our court system is set up to be an antagonistic one, with both sides represented before a judge. The government has managed to avoid such antagonistic scrutiny of its data collection and mining programs — even in the al-Haramain case, where the charity had proof they had been the target of illegal, unwarranted surveillance — by ensuring no one could ever get standing to challenge the program in court. Most recently in Clapper v. Amnesty, SCOTUS held that the plaintiffs were just speculating when they argued they had changed their habits out of the assumption that they had been wiretapped.

This order might just provide someone standing. Any of Verizon’s business customers can now prove that their call data is, as we speak, being collected and turned over to the NSA. (Though I expect lots of bogus language about the difference between “collection” and “analysis.”)

That is what all the secrecy has been about. Undercutting separation of powers to ensure that the constitutionality of this program can never be challenged by American citizens.

It’s no big deal, says the Administration. But it’s sufficiently big of a deal that they have to short-circuit the most basic principle of our Constitution.
What in the world is really going on here?

Update II: Marcy on Majority Report speculates that the NSA has developed an algorithm that tracks people who fit a certain terrorist "profile"  --- which in the past has meant suspicious behavior like buying beauty supplies. (The result of this is false positives --- otherwise known as innocent people being targeted.)