Recently we discussed whether the NSA was just looking at metadata or involved in mass wiretapping, with conversations being recorded. Declan McCullough of CNet, citing sources including William Binney of the NSA indicates that the latter is closer to the truth (via Brit at DK):
The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.
Rep. Jerrold Nadler, a New York Democrat, disclosed this week 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.
[Updated article adds this: 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."]
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.
Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, Nadler’s disclosure indicates the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.
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.
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.
The best description of the situation seems to be that the NSA is attempting to record everything, but that it has been limited by storage to record only 500K-1M people, many of whom are presumably outside of the US. That will change with Bluffdale coming online, at which point the NSA will be able to record everyone on the planet.
On the other hand, they only listen to a limited number of conversations and they claim they obtain legal authority to do so. From a rubber stamp court that never denies them, of course. So we are basically protected from totalitarian control because the NSA are honorable men who would never, ever break the law.
Except, of course, for the many times in the past when they have been caught at it.
They don’t even think they have to tell plausible lies anymore.
Added: I should point out that major news organizations have not yet gotten this far down the line and McCullough is hardly infallible. Citing an interview in the Daily Caller is an example of journalistic laziness. But this seems to me to be a fair summary of what is a very complicated story. Among the elements of the story that require careful dissection are:
* Are the targets of surveillance Americans?
* Are the interceptions based on communications inside the country?
* Is the intercept a telephone call vs. other forms of electronic communication?
* Does the intercept include metadata or content?
* What threshold is required to review the content of communications?
* If an intercept is determined not to be useful (or simply not examined), how long is it retained?
I actually think that storage is the most dangerous part of the system that has been constructed. In security states, the abuse typically occurs when someone does something legal that ticks off someone in power. They go back through old records to find something of which to to accuse the person. Limit storage to, say, 60 days, and that gets harder.
Update: Josh Marshall says that McCullough misunderstood what Nadler said. Somehow he managed to miss all of the rest of the stuff in the article. The Nadler quote was only startling because it suggested that the NSA had admitted something. The NSA never admits anything.
It’s the other people–people like Bamford and Binney–who we should be listening to.