NSA
Admits Listening to U.S. Phone Calls Without Warrants
NSA Spying Flap Extends To Contents of U.S. Phone Calls
National Security Agency discloses in secret Capitol Hill briefing that thousands of analysts can listen to domestic phone calls. That authorization appears to extend to e-mail and text messages too.
By Declan McCullagh
The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls, a participant said.
NSA Spying Flap Extends To Contents of U.S. Phone Calls
National Security Agency discloses in secret Capitol Hill briefing that thousands of analysts can listen to domestic phone calls. That authorization appears to extend to e-mail and text messages too.
By Declan McCullagh
The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls, a participant said.
Rep.
Jerrold Nadler, a New York Democrat, disclosed on Thursday that
during a secret briefing to members of Congress, he was told
that the contents of a phone call could be accessed "simply
based on an analyst deciding that."
If the NSA
wants "to listen to the phone," an analyst's decision is
sufficient, without any other legal authorization required,
Nadler said he learned. "I was rather startled," said Nadler, an
attorney and congressman who serves on the House Judiciary
committee.
Not only
does this disclosure shed more light on how the NSA's
formidable eavesdropping apparatus works domestically, it
also suggests the Justice Department has secretly interpreted
federal surveillance law to permit thousands of low-ranking
analysts to eavesdrop on phone calls.
James
Owens, a spokesman for Nadler, provided a statement on Sunday
morning, a day after this article was published, saying: "I am
pleased that the administration has reiterated that, as I have
always believed, the NSA cannot listen to the content of
Americans' phone calls without a specific warrant." Owens said
he couldn't comment on what assurances from the Obama
administration Nadler was referring to, and said Nadler was
unavailable for an interview. (CNET had contacted Nadler for
comment on Friday.)
Because
the same legal standards that apply to phone calls also apply to
e-mail messages, text messages, and instant messages, being able
to listen to phone calls would mean the NSA analysts could also
access the
contents of Internet communications without going before a
court and seeking approval.
Nadler's
initial statement appears to confirm some of the allegations
made by Edward Snowden, a former NSA infrastructure analyst who
leaked classified documents to the Guardian. Snowden
said in a video interview that, while not all NSA analysts
had this ability, he could from Hawaii "wiretap anyone from you
or your accountant to a federal judge to even the president."
There are
serious "constitutional problems" with this approach, said Kurt
Opsahl, a senior staff attorney at the
Electronic Frontier Foundation
who has litigated warrantless wiretapping cases. "It epitomizes
the problem of secret laws."
The NSA
declined to comment to CNET. (This is unrelated to the
disclosure that the NSA is currently collecting records of
the metadata of all domestic Verizon calls, but not the actual
contents of the conversations.)
Rep. Mike
Rogers (R-Mich.), the head of the House Intelligence committee,
told CNN on Sunday that the NSA "is not listening to
Americans' phone calls" or monitoring their e-mails, and any
statements to the contrary are "misinformation." It would be
"illegal" for the NSA to do that, Rogers said.
The
Washington Post
disclosed Saturday that the existence of a top-secret NSA
program called NUCLEON, which "intercepts telephone calls and
routes the spoken words" to a database. Top intelligence
officials in the Obama administration, the Post said, "have
resolutely refused to offer an estimate of the number of
Americans whose calls or e-mails have thus made their way into
content databases such as NUCLEON."
(Credit: Getty Images)
Earlier
reports have indicated that the NSA has the ability to record
nearly all domestic and international phone calls -- in case an
analyst needed to access the recordings in the future. A Wired
magazine
article last year disclosed that the NSA has established
"listening posts" that allow the agency to collect and sift
through billions of phone calls through a massive new data
center in Utah, "whether they originate within the country or
overseas." That includes not just metadata, but also the
contents of the communications.
William
Binney, a former NSA technical director who helped to modernize
the agency's worldwide eavesdropping network,
told the Daily Caller this week that the NSA records the
phone calls of 500,000 to 1 million people who are on its
so-called target list, and perhaps even more. "They look through
these phone numbers and they target those and that's what they
record," Binney said.
Brewster
Kahle, a computer engineer who founded the Internet Archive, has
vast experience storing large amounts of data. He created a
spreadsheet this week estimating that the cost to store all
domestic phone calls a year in cloud storage for data-mining
purposes would be about $27 million per year, not counting the
cost of extra security for a top-secret program and security
clearances for the people involved.
NSA's
annual budget is classified but is
estimated to be around $10 billion.
Documents
that
came to light in an EFF lawsuit provide some insight into
how the spy agency vacuums up data from telecommunications
companies. Mark Klein, who worked as an AT&T technician for over
22 years, disclosed in 2006 (PDF)
that he witnessed domestic voice and Internet traffic being
surreptitiously "diverted" through a "splitter cabinet" to
secure room 641A in one of the company's San Francisco
facilities. The room was accessible only to NSA-cleared
technicians.
AT&T and
other telecommunications companies that allow the NSA to tap
into their fiber links receive absolute immunity from civil
liability or criminal prosecution, thanks to a law that Congress
enacted in 2008 and renewed in 2012. It's a series of amendments
to the
Foreign Intelligence Surveillance Act, also known as the
FISA Amendments Act.
That law
says surveillance may be authorized by the attorney general and
director of national intelligence without prior approval by the
secret Foreign Intelligence Surveillance Court, as long as
minimization requirements and general procedures blessed by the
court are followed.
A
requirement of the 2008 law is that the NSA "may not
intentionally target any person known at the time of acquisition
to be located in the United States." A possible interpretation
of that language, some legal experts said, is that the agency
may vacuum up everything it can domestically -- on the theory
that indiscriminate data acquisition was not intended to
"target" a specific American citizen.
(Credit: Getty Images)
Rep.
Nadler's statement that NSA analysts can listen to calls without
court orders came during a House Judiciary
hearing on June 13 that included FBI director Robert Mueller
as a witness.
Mueller
initially sought to downplay concerns about NSA surveillance by
claiming that, to listen to a phone call, the government would
need to seek "a special, a particularized order from the FISA
court directed at that particular phone of that particular
individual."
Is
information about that procedure "classified in any way?" Nadler
asked.
"I don't
think so," Mueller replied.
"Then I
can say the following," Nadler said. "We heard precisely the
opposite at the briefing the other day. We heard precisely that
you could get the specific information from that telephone
simply based on an analyst deciding that...In other words, what
you just said is incorrect. So there's a conflict."
Sen.
Dianne Feinstein (D-Calif.), the head of the Senate Intelligence
committee, separately acknowledged that the agency's analysts
have the ability to access the "content of a call."
(Credit: Getty Images)
Director
of National Intelligence Michael McConnell
indicated during a House Intelligence hearing in 2007 that
the NSA's surveillance process involves "billions" of bulk
communications being intercepted, analyzed, and incorporated
into a database.
They can
be accessed by an analyst who's part of the NSA's "workforce of
thousands of people" who are "trained" annually in minimization
procedures, he said. (McConnell, who had previously worked as
the director of the NSA, is now
vice chairman at Booz Allen Hamilton, Snowden's former
employer.)
If it were
"a U.S. person inside the United States, now that would
stimulate the system to get a warrant," McConnell told the
committee. "And that is how the process would work. Now, if you
have foreign intelligence data, you publish it [inside the
federal government]. Because it has foreign intelligence value."
McConnell
said during a separate congressional appearance around the
same time that he believed the president had the constitutional
authority, no matter what the law actually says, to order
domestic spying without warrants.
Former FBI
counterterrorism agent Tim Clemente
told CNN last month that, in national security
investigations, the bureau can access records of a previously
made telephone call. "All of that stuff is being captured as we
speak whether we know it or like it or not," he said. Clemente
added in an appearance the next day that, thanks to the
"intelligence community" -- an apparent reference to the NSA --
"there's a way to look at digital communications in the past."
NSA
Director Keith Alexander said on June 12 that his agency's
analysts abide by the law: "They do this lawfully. They take
compliance oversight, protecting civil liberties and privacy and
the security of this nation to their heart every day."
But that's
not always the case. A New York Times
article in 2009 revealed the NSA engaged in significant and
systemic "overcollection" of Americans' domestic communications
that alarmed intelligence officials. The Justice Department said
in a statement at the time that it "took comprehensive steps to
correct the situation and bring the program into compliance"
with the law.
Jameel Jaffer, director
of the ACLU's Center for Democracy, says he was surprised to see
the 2008 FISA Amendments Act be used to vacuum up information on
American citizens. "Everyone who voted for the statute thought
it was about international communications," he said.
Updated 6/16 at 11:15 a.m. PT
The original headline when the story was published on Saturday
was "NSA admits listening to U.S. phone calls without warrants,"
which was changed to "NSA spying flap extends to contents of
U.S. phone calls," to better match the story. The first
paragraph was changed to add attribution to Rep. Nadler. Also
added was an additional statement that the congressman's aide
sent this morning, an excerpt from a Washington Post story on
NSA phone call content surveillance that appeared Saturday, and
remarks that Rep. Rogers made on CNN this morning.]
Declan
McCullagh is the chief political
correspondent for CNET. Declan previously was a reporter for
Time and the Washington bureau chief for Wired and wrote the
Taking Liberties section and Other People's Money column for CBS
News' Web site.
This article was originally published at
CNet
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