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More on the NSA Surveillance Program:
ABC News reports that Russell Tice, a former NSA insider, has publicly announced that he is one of the sources for the New York Times reporting on the NSA domestic surveillance program. The story includes the following tidbits relevant to the program itself:
  Tice says the technology exists to track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use.
  "If you picked the word 'jihad' out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing."
  According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more.
  President Bush has admitted that he gave orders that allowed the NSA to eavesdrop on a small number of Americans without the usual requisite warrants.
  But Tice disagrees. He says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used.
  "That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.
  Of course, saying that "the technology exists" doesn't necessarily mean that the technology was used in that way in this program. It might, but it's not clear. Plus, it's unclear what "the full range of secret NSA programs" means. Is that a reference to ECHELON? I don't think we know. Thanks to Eric Freedman for the link.
Stephen VanDyke (mail) (www):
I wouldn't be the least bit suprised if it's in the millions, it sounds like the NSA has a nice little data mining operation going on and had been given the go-ahead to snoop as they see fit.
1.11.2006 10:19am
A.S.:
Millions?

Tice was a source for the original NYTimes article right? Well, that article said the NSA program only eavesdropped on 500 Americans at any one time, with a total of "thousands". Not "tens of thousands" or "hundreds of thousands", much less "millions".

So if Tice was a source, why did Risen not say "millions"?
1.11.2006 10:26am
An Appreciative Reader:
Professor Kerr,

I (and others, I'm sure) would appreciate your comments on the letter signed and recently released by Profs Cole, Epstein, Sullivan, etc.

If you don't have any comments on the substance of the letter, do you have any thoughts on the collection of people who signed the letter?

Many thanks for your contributions to the blog.
1.11.2006 10:42am
Bruce Hayden (mail) (www):
AS

Possibly because of the difference between having the technology to do the job, and actually doing it. After all, the difference between the two here is really whether the Administration is blatently violating the law and the 4th Amdt., or just arguably doing so.

If they are limiting themselves to 500 conversations at a time, and maybe even, as suggested by the President, only taping calls from overseas suspected terrorists, they will probably evade jail and impeachment. But if they are massively monitoring large volumes of internal U.S. traffic, as he suggests they are capable of, then they are SOL.

On a different note - I was always theorizing that they were looking for specific voices, like OBL's, when voice recognition came up. But it appears from Tice that they are (also?) doing the type of voice recognition that recognizes certain words.

I am not sure though how effective this would be. I don't think those two snippets on 9/10 from the soon-to-be hijackers used "jihad", etc., but were rather cryptic. In retrospect, I can see how it tied in, but at the time? I am just surprised that those two conversations kicked out.

Finally, a note on civil disobedience. Maybe the way out of this is to start a massive campaign of using trigger words in our conversations, such as "jihad". Better, of course, if we could do it in Arabic. Then, if the NSA is truly monitoring a large percentage of domestic calls, the system may just break down with the overload of spuriously used trigger words.
1.11.2006 10:50am
ChrisAllan (mail):
For those of you that are interested in reading about the NSA try "The Puzzle Palace" and "Body Of Secrets" by James Bamford. "Puzzle" was the first book and was written before the information explosion; it's also pretty boring at times.
1.11.2006 11:01am
Defending the Indefensible:
The irony of it is that if they're filtering on trigger words, and particularly Arabic words, there aren't nearly enough Arabic-English translators in the government to usefully make a dent in the traffic.
1.11.2006 11:03am
chris (mail):
So Tice has admitted to treason or at least revealing highly classified information. Great. Indict him and put him jail for 20 years, unless I missed somewhere in the law that says it's ok to reveal classified information as long as the New York Times thinks the program is really bad.
1.11.2006 11:08am
Bob Bobstein (mail):
I bet they don't limit themselves to words like "jihad"; I'm sure they're using other intel to refine their searches.

If they are limiting themselves to 500 conversations at a time, and maybe even, as suggested by the President, only taping calls from overseas suspected terrorists, they will probably evade jail and impeachment. But if they are massively monitoring large volumes of internal U.S. traffic, as he suggests they are capable of, then they are SOL.

I'm not sure I can envision circumstances in which today's Congress would impeach the president.

Also, if this program is much more broad than we realized, does that help explain why the administration didn't use FISA, or even request that Congress amend it? Because they knew it was unconstitutional, but regarded it as necessary?
1.11.2006 11:15am
Defending the Indefensible:
Realistically, the 500 conversations at a time is probably the effective limit of human monitoring. Or at least, millions is not within that effective limit, even putting aside the question of Arabic-English translation I mentioned above.
1.11.2006 11:25am
Steve:
I would really, really like to believe that the warrantless spying program has been limited and narrowly focused against terrorism suspects. But I can't get past the evident fact that if the program really were limited and narrowly focused, there would be no reason to continue the program for 4 years without seeking FISA warrants. Given the history of the FISA court, it would be a slam dunk to obtain warrants to, for example, wiretap numbers from a terrorist's cell phone.
1.11.2006 11:45am
deweber (mail):
There is the interesting legal question on this. Tice's description looks like data mining and clearly no human being looks at all the calls. What is the law when no human looks at the transmission? Is it a search? Are those whose calls are looked at only by the computer being eavesdropped on?
1.11.2006 11:46am
Freddy Hill (mail):
The wife of a German colleague of mine is a native Arabic speaker. She is employed by the German government to listen to recorded conversations that seem to be obtained by data mining means similar to the ones discussed in this post. The system does not seem very secret, either, since she takes the tapes home to listen to them while she takes care of the kids; it is an ideal job for a mother of small children! I suspect that the Germans are able to listen into more than 500 concurrent conversations, and I doubt that they are particularly troubled that these are domestic or international.

This hints at the fact that, while Europeans tout their superiority against America in terms of human rights and privacy issues, they are also practical enough to gather the intelligence needed to protect themselves. Are we?
1.11.2006 11:47am
J..:
Tice recently gave an interview for DemocracyNow (among others). Here is the transcript. He has an interesting story (I'd hope the discussion does not devolve into a debate on his character.)

He does not appeal to have formal legal analysis. His ultimate conclusions don't seem very useful, though any background information he can give could be helpful to understand the program and its potential illegality.
1.11.2006 11:47am
Observer (mail):
I look forward to Mr. Tice's confinement in the federal prison system. His confession surely simplifies his prosecution. It will not be necessary now to hale Mr. Risen before a federal grand jury to discover Tice's identity. (Although it may be necessary to do that to uncover any other criminal leakers.) Perhaps Mr. Tice can share a cellblock with Aldritch Ames.
1.11.2006 11:50am
Medis:
Just an aside, but as we noted in prior conversations, this is not in fact a description of "data mining". That term refers to techniques used to extract data out of large, previously stored, databases. But this technology involves how that data is obtained in the first place, not what is done with it once it is stored.

Anyway, if this is in fact the technology underlying the program, then I suspect DtI is right. In other words, one has to distinguish between the initial, apparently automated, filtering of communications, and the subsequent monitoring of those communications which have been caught by the filters (likely done with human participation). While the latter could not feasibly involve millions of US persons, and indeed might involve only hundreds of US persons, at any given time, the former could well include the communications of millions of US persons.
1.11.2006 11:57am
Medis:
By the way, Tice claims in the article that he is not revealing classified information. And we do not have a general Official Secrets Act in this country.
1.11.2006 12:00pm
Steve:
It is deeply disturbing that those who grasp at any excuse for the President's lawbreaking can't wait to see this leaker hung for treason. It's a depressingly partisan application of the rule of law, and it does not bode well for our country.
1.11.2006 12:08pm
Bob Bobstein (mail):
Tice claims in the article that he is not revealing classified information.

The president's Article II powers allow him to violate criminal statutes such as FISA, and to detain US citizens indefinitely without charges. So, if the president determines that Tice has harmed national security even if Tice hasn't revealed any classified information, he has the authority to detain him.
1.11.2006 12:11pm
Medis:
Bob,

The cynic in me suggests that Tice was smart to get his name and story out to the public before he disappeared into a South Carolina brig.
1.11.2006 12:15pm
J..:
By the way, Tice claims in the article that he is not revealing classified information. And we do not have a general Official Secrets Act in this country.

He did so in his DemocracyNow interview, too. (Indeed, he went out of his way a few times to make that clear.)

I recall hearing the DN interview when it came out a week ago. It was striking then that Goodman did not ask questions related to what, if anything, Tice told members of the media and when he told them.

Tice is claiming protection under the NSA's Whistleblower statute (at the least for his proposed testimony before Congress, which [iirc] Congress has not yet authorized.) Does anyone know how this works?
1.11.2006 12:15pm
Bushrod, J. (mail):
The administration is engaged in surveillance (of some kind and degree) designed to prevent a terrorist attack -- regardless of magnitude or likelihood of success.

This whole dispute boils down to whether Congress has the authority -- and will assert itself -- to manage the scope of the surveillance program.

Based on the president's signing statement in response to the McCain amendment, it would seem that, even if Congress modified FISA to cover precisely what the president's doing, this president has no intention of following the law if he doesn't want to. For the reasons set forth in his PSS to the McCain Amendment.

So all that's left is for the House to weigh impeachment.

That's never going to happen with a GOP Congress and GOP president.

If a Democrat were president right now, would all these postings -- here and in reference to Prof Kerr's prior postings -- read exactly the same?

Would the GOP spokespeople being saying the same thing?

Would the Democrats?

At the end of the day, what's happening here is an substantial and significant errosion of the rule of law, IMHO.

It's ironic, too. The Constitution was crafted by survivors of a revolutionary war that lasted several years, and the US still had exceedingly chilly relations with England (that culminated in the Capitol's burning in 1812). It was crafted when Indian Nations warred against frontier settlers. It was crafted when ships on the open oceans were regularly captured and the seamen impressed into service for other countries.

And during those truly perilous times -- when the literal survival of the US as a separate country, and many of its citizens, was at stake in real and pressing terms -- the framers drafted a Constitution that presumed to make Congress the most powerful branch, with an executive branch less powerful and certainly without unlimited war power.

Here we are 220+ years later, during a time, to paraphrase historian James McPherson, when we face a threat substantially less serious than those posed by England, the Civil War, and the Soviet Union, and -- as a country -- we're letting the President act in ways that threaten Constitutional government.

As policy, what the NSA is doing is good. As law, how the president got there is not. How this Congress responds, I expect, will be quite submissively. That's unfortunate in the long run. Because we will be left with a supercharged executive (now and in the future) whose creeping exercise of secret spying powers is inevitable, dangerous, and destructive.
1.11.2006 12:16pm
John Lederer (mail):
When Tice's name first came up, I googled him. He said that he wasn't ivolved in and didn;t have knowledge of the surveillance program. Now he says he does.

I could not find the original Google, but this from earlier suggests that he would not.
===============



BILL TUCKER, CNN CORRESPONDENT (voice-over): The signs are everywhere encouraging us to say something if we see something suspicious. Russell Tice, a former high-ranking intelligence analyst, says doing just that cost him his job.

He went to his bosses in early 2001 and reported his suspicions that a co-worker could be a spy for the Chinese government. Something he admits that was not easy to do.

RUSSELL TICE, FMR. INTELLIGENCE ANALYST: Everyone liked this young lady, as did I, for that matter. So, you know, I knew it was my responsibility to do this. And I also knew I would become the immediate bad guy in this whole situation.

TUCKER: He says that report got him reassigned from his job as an intelligence analyst for the National Security Agency to a variety of jobs, including pumping gasoline and moving furniture for that agency. His high-level security badge was replaced with a red one.

TICE: I was red-badged. And it's sort of like having a scarlet letter on your forehead. It's -- people that you formerly worked with will shun you. You know, you're ostracized, mainly because they're afraid of being associated with you.

TUCKER: Ultimately, his security clearance was revoked. And this past May, Tice lost his job. The NSA won't comment on the case specifically, but says it's policy to investigate claims of retaliation against employees.

http://transcripts.cnn.com/TRANSCRIPTS/0506/29/ldt.01.html
1.11.2006 12:23pm
margate (mail):
I've not read (or previously heard of) the NSA whistleblower regulations.

But I know this, as a lawyer who's done whistleblower cases, for several years involving local, state, and federal employees.

No whistleblower statute insulates from criminal prosecution the disclosure of classified information to a newspaper. (Hardly a surprise.)

Whistleblower statutes are designed, fundamentally, to protect current employees who challenge past or present practices that may violate public policy (however defined by the relevant whistleblower regime).

If Tice blew the whistle as a *former* employee, then he should retain a criminal-defense attorney, it seems to me.
1.11.2006 12:23pm
Medis:
Bushrod,

You might be right, but I am not certain. Even Republicans in Congress presumably have some stake in protecting the power of Congress--indeed, they too can contemplate the possibility of a Democrat as President. Moreover, because the President is not up for reelection again, his political incentives are not necessarily in line with the political incentives of Republicans in Congress.

For good or ill, of course, all that may apply differently to the Senate and the House, and I think the President is indeed fortunate that the impeachment process would have to begin in the House. Still, I think there has to be some point at which even a GOP-controlled House would think the President had gone too far, constitutionally and politically. I'm just not sure if this is that point.
1.11.2006 12:25pm
Herman (mail):
While some might argue that Mr. Tice should be punished for leaking classified information, powerful arguments have recently come forth that indicate that he is a heroic whistleblower who alerted the public to Bush's violation of the law. First, we have the 44 page report of the Congressional Research Service, whose conclusions are discussed here:

CRS

Then we have a letter written by 14 legal experts (including a former director of the FBI) that Bush violated the law: Legal_experts

And finally we have this letter written by the incomparable Professor Laurence Tribe: Mr. Tribe

So, if for the sake of argument, we conclude that Bush and company broke the law, can Mr. Tice be convicted of anything?
1.11.2006 1:11pm
David M. Nieporent (www):
When Tice's name first came up, I googled him. He said that he wasn't ivolved in and didn;t have knowledge of the surveillance program. Now he says he does.
Not in that Democracy Now interview, the transcript of which I just read. He doesn't really claim to have much knowledge of anything, other than the general way in which NSA operates. He himself says that any spying on Americans would have been unwitting.
1.11.2006 1:12pm
Cheburashka (mail):
I would just like to point out that as a factual matter, if true, Tice is describing an NSA with vastly more capabilities than anyone has ever thought before.

He's not describing interception of wireless or satellite transmissions. He's describing access to the switches.

How in the heck does the NSA have access to the switches? By arrangement with the telcom carriers? By physical tap of the switches themselves?

Has anyone previously thought that the NSA had such capabilities?
1.11.2006 1:28pm
Mary Katherine Day-Petrano (mail):
First of all, my father, Kenneth G. Day, told me back in 1991 NSA's electronic system could monitor millions of domestic calls or at least would soon (from the perspective of 1991) be able to do so.

Second, when I read the pdf letter the NSA sent Tice, posted by link on another htread, I realized from the Ft. Meade, MD address, that is where my father went repeatedly on out of town trips, as I remember him telling me that was his destination from the time I was a small child until about 1991 when the events of which I have previously described on other threads occurred. I don't recall him ever telling me IBM had an offic there.

Bruce -- "On a different note - I was always theorizing that they were looking for specific voices, like OBL's, when voice recognition came up. But it appears from Tice that they are (also?) doing the type of voice recognition that recognizes certain words."

That is exactly what I was saying on the NSA thread so many threads ago when Volokh had the infamous "hardware failure," went offline for appx. 1 1/2 days, and came back online minus appx. 150-200 posts, including all of mine regarding the problems with use of voice-recognition technology. Voice-recognition has to "train" to a particular person's voice and record and math those sounds to its internal word dictionary. Thus, without the actual person whose voice is being monitored to sit with the computer and "train" his or her voice, this technology is prone to many errors -- including maybe not even identifying the right person's voice, mis-interpreting backgroound shadow noise to be prohibited words which are then mis-attributed ti having been uttered by a person, etc.

In other words, a person can be black listed in the NSAs, DODs, FBIs "terrorist threat" lists sinply because someone lit a fart in the background the voice-recognition systemt mis-identified as the word "jihad." And so an American's life can be utterly devastated and destroyed on so little.

Perhaps the NSA might be trying to take voice recordings of people it believes are OBL, and then feeding it into a voice-recognition/dictionary system, but this is adding another layer to the above already seriously error prone system from which NSA probably has not managed to eliminate the computer system bugs. This has all the makings of a Stanley Kubrick movie.

On another note, if the Feds are so Arabic-English language deprived, why would they be targeting a victim of their NSA IBM architect of ECHELON and their electronic domestic surveillance system to protect his drug-enhanced childhood sexual molestation and abuse, and subsequent head bashing traumatic brain injury, when I previously was invited to interview with the CIA (but by age cutoff I was too old) beause I spoke and wrote Arabic, Russian, Spanish, and English, and dabbled in French.

This is truly an Administration who has its priorities upsidedown.

I will repeat,
1.11.2006 1:48pm
Mary Katherine Day-Petrano (mail):
Re: the voice-recognition, I meant "record and match," not "record and math." This is what I mean about the errors of voice-recognition.
1.11.2006 1:50pm
Mary Katherine Day-Petrano (mail):
Another thing, "There is the interesting legal question on this. Tice's description looks like data mining and clearly no human being looks at all the calls. What is the law when no human looks at the transmission? Is it a search? Are those whose calls are looked at only by the computer being eavesdropped on?" -- Actually, if a person uses a voice-recognition disability device, and Congress has explicitly legislated to protect such disabled users from illegal disccrimination, exclusion, and/or retaliation by enacting the Americans With DIsabilities Act and Rehabilitation Act of 1973, then I would venture to say one cannot provide "lesser services" by excluding from 4th Amendment or FISA protection without running afoul of these laws, and thus, under Youngstown, the PResident's program is at its "lowest ebb."
1.11.2006 1:59pm
Mary Katherine Day-Petrano (mail):
"The wife of a German colleague of mine is a native Arabic speaker. She is employed by the German government to listen to recorded conversations that seem to be obtained by data mining means similar to the ones discussed in this post. The system does not seem very secret, either, since she takes the tapes home to listen to them while she takes care of the kids; it is an ideal job for a mother of small children!"

Exaclty what I mean. This is how I know about my father's work.
1.11.2006 2:00pm
Bobbie:
Good thing the administration fired those gay arabic translators a little while ago.
1.11.2006 2:02pm
Just an Observer:
Cheburashka,

NSA access at or near U.S.-based switches, with the cooperation of unnamed telecom companies, was part of what the NYT has reported. That report was not in the original 12/16 NYT story that began this controversy, but in a 12/24 followup. Sorry, I don't have a working link at the moment.
1.11.2006 2:04pm
Dave G:
>Has anyone previously thought that the NSA had such capabilities?

Anyone who's been paying attention.

The FBI has had access to the switches for at least a decade now. Riders to the various telecoms de/regulation bills over the last twenty years required the telcos to install tapping infrastructure on all switches, which could be enabled remotely (with a warrant, at least in criminal cases). The latest addition to that is Vonage and other VoIP providers, who have been held to be telco providers per the statute, and thus must install the same infrastructure.

This really was in all the papers.

On a more general note, the NSA is well known to be a really quite enormous agency with a really quite enormous budget, although the extent of those enormousnesses is naturally classified. Moreover, they've been in their business for decades, and are generally thought to be pretty good at it. Exactly how limited did you imagine their capabilities would be?
1.11.2006 2:11pm
PD Shaw (mail):
Please stop with all this whistle-blower nonsense. The guy was gripping with reporters, not informing a prosecutor or anybody with the authority to do anything. Go tell Dick Durbin or any Democrat with some semblance of a security clearance if you have to. Otherwise, you are just some guy with a subjective belief that you are entitled to divulge classified secrets whenever you feel justified. Otherwise, if you do the crime do the time. If it makes you a hero to some, then good for you.
1.11.2006 2:35pm
Dave:
My understanding is that even if they're only listening to 500 conversations at a time, they can still listen to millions of people because they can switch so quickly.

Dave
1.11.2006 2:41pm
KMAJ (mail):
I find the Russell Tice issue to be interesting and the opinions offered to be skewed by poolitical leanings. Is it justified to elevate Mr. Tice's credibility because ABC interviewed him on Nightline ? How much should associations effect any evaluation of his credibility or attribution to political gamesmanship ? Because he claims to have been black-listed does it necessarily follow that it is true ? Anyone can find more background on Mr. Tice with a google search, I do not seek to lay claim to illegitimacy of Mr. Tice's claims, but I also do not seek to lend too much legitimacy when there are troubling contrary facts that need to be fleshed out.

Personal opinions of this administration appear to shape individuals willingness to accept or reject Mr. Tice or labelling him hero or villain. To me, this reflects that the polarization and vitriol that is rife in this country extends to the heights of academia and the legal profession.
1.11.2006 2:46pm
Bruce Hayden (mail) (www):
There are actually two slightly different technologies involved in looking for certain words spoken by almost anyone versus looking for specific voices. Whenever I call Qwest these days, I get the former. They have tried to implement simple global voice recognition for common tasks, but IMHO have failed miserably by looking for inane phrases. Thus, instead of looking for "lost phone", they look for "missing handset". Who calls their cell phone a handset besides a phone company? Nevertheless, it does work, and would presumably work just as well for words like "jihad" in Arabic.

The other is really I think simpler - looking for a specific voice. Every voice is unique, and our govt. has had the ability to voice match for at least a decade now. Not maybe definitively (for example, sometimes not beyond a reasonable doubt), but clearly well enough to trigger a recording for later perusal by a translator. This is, BTW, why I always find it humorous when OBL supposedly speaks. I have no doubt that our govt. knows to probably a 99% certainty whether it really was he or not. They are just not playing is game.
1.11.2006 3:41pm
Bruce Hayden (mail) (www):
Also, as I have pointed out on numerous occasions here, the NSA really has little choice in the matter as to whether they tap the fiber switches or not. The bulk of our overseas communications are now going by fiber, and it really doesn't work very well to tap the cables anywhere besides at the switches. There is a question as to whether they do it when it first comes on-shore, or when routed through NYC, for example. And keep in mind that other than the UK, they are unlikely to get access to the relevant switches when they come ashore on the other end, so it pretty much has to be in the U.S.
1.11.2006 3:49pm
Mary Katherine Day-Petrano (mail):
Bruce, I agree there is a difference between technologies for determining particular voices that belong to particular people vs. voice-recognition matching sounds against an internal computer dictionary of words to come up with what the word(s) the computer ascertains the sounds to mean. As I undersand it (and correct me if I'm wrong), the former is further along technologically than the latter.

I agree with almost everythng you have had to say, but I continue to have a problem with you're skipping over the significant errors inherent in current voice-recognition technology. I am wondering if you personally have ever been trained on and utilized this voice-recogntion technology, because it is one thing to read about it and quite another to actually personally use it. I was extensively trained on voice-recognition under a Rehabilitation Act IWRP plan at a Center for Accessible Technology by an expert in the use of this technology. It is quite difficult to learn to use correctly and efficiently. The technology needs to be used in a very quiet location, free from background noise in order to obtain the highest accuracy rates. This is not always possible.

For example, I have used my voice-recognition in law libraries, such as Stetson during exam week, where, while attempting to dictate pleadings thru my device, I have picked up several unintended paragraphs spoken from others in adjacent rooms talking about their exam subjects. I have also picked up parapgraphs of text from professors walking by the study room I am dictating in picked up by the voice-recognition as they engaged in conversation. As I said, even banging and rattling noises from moving books or papers on a table top -- or even lighting a fart -- will cause a voice-recognition device to "interpret" the unfamiliar sounds by matching them into words found in the internal dictionary. I have obtained speeds of text placment on the computer screen at upwards of 90 wpm, due to having painstakingly "trained" my voice-recognition for months. When the device goes haywire, picking up background conversations or sounds and places paragraphs of text "interpreted" as words in the dictionary on the computer screen, my reaction is always "where did all that come from??"

So, the voice-recognition error rate is not such a trivial issue, especially when words no one spoke are data mined by NSA's surveillance system and then actual innocent people are placed on a black list of "potential" or "probable" "terrorist threats," for something they never actually said and then their lives are destroyed.

Another thing, as I have said, I really doubt the NSA has perfected the voice-recognition well enough to take the former technology of voices of particular people and feed those recordings into voice-recognition as means to identify and filter keywords. I am not saying it would not benefit natioal security if this system could be perfected, only that at this point it seems unlikely it has been, and it is my sincere belief numerous innocent lives are being ruined as a result of the error rates inherent in use of this voice-recognition technology. And that is not right.

I also think people should remember there is much difference between surveilling (1) land-based phone lines, (2) fiber optics, and (3) wireless cll phones and wireless internet emails.
1.11.2006 5:26pm
Just an Observer:
Bruce Hayden: "Also, as I have pointed out on numerous occasions here, the NSA really has little choice in the matter as to whether they tap the fiber switches or not. ... they are unlikely to get access to the relevant switches when they come ashore on the other end, so it pretty much has to be in the U.S."

The problem with accessing the switches in the U.S. -- assuming that this qualifies as a "wire communication" -- is that acquiring the intercept within the country apparently brings it under the scope of the FISA statute; if the intercepts occurred abroad they may well have been exempt.

So while the technical advantage of this method may have been the motivation, employing it may have caused the NSA to cross the line into illegal warrantless surveillance.
1.11.2006 5:47pm
Cheburashka (mail):
On a more general note, the NSA is well known to be a really quite enormous agency with a really quite enormous budget, although the extent of those enormousnesses is naturally classified. Moreover, they've been in their business for decades, and are generally thought to be pretty good at it. Exactly how limited did you imagine their capabilities would be?

I thought they continuously monitored over-the-air transmissions, but had to take specific physical actions in order to monitor transmissions over physical wires - i.e., to install a tap.

I had not thought - did not think until reading Tice's comments, and frankly still have substantial doubts - that the NSA had the capability to live-monitor ALL communications going over major switches.

For those of you saying that's what the Times reported, I'm not sure it was. I think everyone's known for years that the government could give a directive to tap a particular line. But to live monitor EVERYTHING - which is what Tice is claiming - for keywords is extraordinary.

It means either that the tapping infrastructure set up over the switches is more sophisticated (and involves no involvement by telco personnel) than previously believed. I mean - just think about the bandwidth that would be required to diver to the NSA a live streaming copy of ALL traffic going over a switch. And the computing power required to continuously voice recognize EVERY one of the conversations.

There is a radical scale difference here.
1.11.2006 5:54pm
Just an Observer:
Cheburashka,

IIRC the NYT did not report that the NSA was capturing all communications. The 12/24 story did say, however, that the NSA had begun tapping into U.S. communications at or near the switches, which enabled surveillance on a larger scale than was possible before. That was what was novel about the program.
1.11.2006 6:19pm
John Lederer (mail):
JAO,

If you read carefully, I do not think the NYT exactly said that the tap was at or near the U.S. switches.


I could easily envision chnages to the routing of the US switches so that traffic of interest went through England and was intercepted there (note that we have some evidence that the UN delegations communications were intercepted in England in 1992).

If you look at a map of the Submarine Cable network you will find that England has almost as strategic a location as the US.
1.11.2006 7:06pm
Bruce Hayden (mail) (www):
Observer:

Agreed. In particular, it moves the surveilance from 50 USC 1801(f)(1) to (f)(2), which is significant. Under (f)(1), it needs to be targetted at a United States Person (i.e. someone in the U.S. legally) in the United States to be "Electronic surveillance", whereas under (f)(2), the person in the U.S. need not be targetted, nor be here legally.

Mary Katherine Day-Petrano

You are correct as to the problems with voice recognition for specific words for a specific person. Every year or so I give it a try, and it always seems to be more trouble than it is worth. But that is really not what I am talking about here. Rather, merely recognizing a specific voice is technically much easier, as long as you aren't trying to figure out what he/she is saying. My understanding is that the CIA/NSA have had this capability for better than a decade.

Also, so what if they get some false positives? All that does is get the conversations recorded for future human review.
1.11.2006 7:09pm
bud (mail):
How can they access the switches?

Google "CALEA".

Actually, the technology was developed long before that act; I remember reading a RFP from the Taiwan gov't that required that capability around 1976 or so. AE gave them what they wanted. Applying it to US switches was just a matter of cost, and CALEA gives the OCs no choice.
1.11.2006 8:06pm
Just an Observer:
John Lederer: "If you read carefully, I do not think the NYT exactly said that the tap was at or near the U.S. switches."

I am at a disadvantage, because I failed to keep a local copy of the 12/24 NYT story, and now it is apparently available only to premium subscribers. So I won't say you are wrong. Perhaps you could supply some extended quotes to clarify your reading of it?

I thought I did read it carefully at the time, and unless the story was artfully crafted to give the impression that the intercepts were accomplished at U.S.-based switches when they actually weren't, I think my paraphrase was accurate.
1.11.2006 9:28pm
jukeboxgrad (mail):
JaO,

"I failed to keep a local copy"

High-impact articles can usually be found, one way or another. It's here.

I think the article indicates that you're right and John's wrong. John said "I do not think the NYT exactly said that the tap was at or near the U.S. switches."

Here's what Risen said: "[information] was collected by tapping directly into some of the American telecommunication system's main arteries ... the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications ... One issue of concern to [FISC] ... is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic 'switches' ... senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks."

By the way, I think this information is highly congruent with something Hayden said a few days earlier: "I can assure you, by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States of America." This comment about "physics" suggests that the tap is close to where the fiber goes under the ocean. (Maybe part of what's going on is that John thinks of that point as more of a "terminal" than a "switch;" I see the validity of this reasoning, but I think it gets into hairsplitting. Or fibersplitting.)

Aside from all that, I don't trust what's implied, that they're not also snooping on purely domestic communications. When they suggest they're not, they mean "just not in this program."
1.12.2006 9:33am
John Lederer (mail):
"As part of the program approved by Bush for domestic surveillance without warrants, the NSA has gained the cooperation of U.S. telecommunications companies to obtain back-door access to streams of domestic and international communications, the officials said.
***
Several officials said that after Bush's order authorizing the NSA program, senior government officials arranged with top officials of some of the nation's largest telecom companies to gain access to important switches that act as gateways at the borders between U.S. communications networks and the international networks. The identities of the corporations involved could not be determined.
***
The switches are some of the main arteries for bringing voice and some Internet traffic into and out of the United States and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such U.S. switches.

One outside expert on communications privacy who previously worked at the NSA said that to exploit its technological capabilities, the U.S. government has in the past few years been encouraging the telecom industry to increase the amount of international traffic routed through U.S.-based switches.

The growth of that transit traffic had become a major issue for the intelligence community because it had not been fully addressed by 1970s-era laws and regulations governing the NSA, officials say. Now that foreign calls were being routed through switches on U.S. soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillanc"


(I did not quote parts regarding telcos giving data on traffic pattern info to NSA)
1.12.2006 9:35am
Just an Observer:
John Lederer,

Well, I broke down and paid for access to the 12/24 NYT article. Here are excerpts that I read to mean that the NSA has intercepted communications at or near communications switches in the United States:


The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said. ...

Several officials said that after President Bush's order authorizing the N.S.A. program, senior government officials arranged with officials of some of the nation's largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States' communications networks and international networks. The identities of the corporations involved could not be determined.

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970's-era laws and regulations governing the N.S.A. Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Historically, the American intelligence community has had close relationships with many communications and computer firms and related technical industries. But the N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.



I don't dispute your speculation that it might be possible to divert traffic through switches in the UK and intercept it there. But I still think the NYT reported that intercepts occur in the United States.
1.12.2006 9:36am
Bruce Hayden (mail) (www):
It is possible that we could tap overseas fiber optic cables that come ashore from here in the UK, as they too are participatns in ECHELON. And that would solve part of the problem. But what about fiber optic cables from here that come ashore elsewhere? I don't know exactly where they all come ashore, but suspect that less than half our overseas traffic goes through the UK. After all, there is also our west coast to consider.

As a note on CALEA, the requirements seem to envision a much lower capacity requirement for surveilance than is apparently being utilized by the NSA. After all, it was designed for law enforcement, and not national security, purposes. And thus, CALEA requirements would, I would think, just envision the monitoring of a handful of simultaneous conversations at any one time at any given switch. Add to that, that CALEA taps are presumably for a lot longer duration, weeks, if not months, versus seconds and minutes for the NSA interceptions. It may have been easily expandable for NSA use, but often scaling up like this is not trivial.

One way of looking at this is that a telco could presumably comply with CALEA by providing law enforcement the ability to attach a dozen tape recorders to the switches and routing all calls to a dozen numbers to those tape recorders. It can, and probably is, done in a room in the buidiings housing the switches. The NSA evesdropping presumably requires tapping into thousandds of calls at once, changed on a fairly rapid basis, and then routing all this to an external location, presumably also via fiber optic cables. Alternatively, they could be relaying all the traffic to the external locations, which would require a lot of fiber running from the telco switches to the NSA facilities.
1.12.2006 11:54am
jukeboxgrad (mail):
Gosh, that's weird. JaO asked a question last night. Exactly 24 hours and five minutes later, I posted the answer. Then in a blaze of simultaneity, JaO and John posted the answer, all within a period of 3 minutes.

I'm sure this is just garden-variety cross-posting, which happens all the time, but the 3-way synchronicity was striking. Were we all watching the exact same TV show this morning, and decided to catch up on VC during the exact same commercial?
1.12.2006 12:36pm
srg (mail):
Medis,

You answered very well my earlier question about the application of Truong. However, you have not dealt with the 2002 FISC ruling which referred to Truong and seems to have said that the President has the right to obtain foreign intellgience. Were they saying that the President has the right to obtain this information through warrantless wiretaps? Since, I belive, part of that decision is secret, do we know exactly what the IFISC said?
1.12.2006 12:51pm
Mary Katherine Day-Petrano (mail):
Bruce, we agree there are two different technologies re: voice capture.

"Also, so what if they get some false positives? All that does is get the conversations recorded for future human review."

So WHAT???? A false postive is a false positive, and just as harmful whether it is acted on sonner rather than later -- the end result is the same, destruction of an innocent American's life based on black listing by errors in what words were or were not actually spoken.

Don't gloss over this core issue.
1.12.2006 2:43pm
John Lederer (mail):
Today's Washington Times:

"Mr. Tice said he was not part of the classified NSA program disclosed by the New York Times last month that intercepted telephone, e-mail and other communications involving U.S. citizens without a warrant from a special court.
However, he told ABC News on Tuesday that he was a source for the New York Times. "
1.12.2006 2:56pm
John Lederer (mail):
Regarding Submarine cables:

map
incomplete and sometimes obsolete database
I have run a fair number of traceroutes from me (Wisconsin) to the Mideast/Southwest Asia, and from the Mideast/Southwest Asia to me. They almost always seem to go through the UK. I cannot run Afghanistan directly, but have used Iran and Pakistan as surrogates, e.g.



traceroute to 24.183.61.116 (24.183.61.116), 30 hops max, 38 byte packets
1 FE-3-0-100M-CORE (202.59.80.2) 1.188 ms 1.172 ms 0.982 ms
2 10.10.80.1 (10.10.80.1) 2.495 ms 1.805 ms 1.745 ms
3 s2-1.glb57d1.pie.net.pk (202.125.139.233) 6.224 ms 2.385 ms 2.649 ms —-from Pakistan
4 pos10-0-0.lhe63c1.pie.net.pk (202.125.159.229) 2.761 ms 2.189 ms 4.963 ms
5 pos.khi77c1.pie.net.pk (202.125.159.9) 17.505 ms 17.761 ms 23.414 ms
6 t2a4-p2-3.uk-lon2.eu.bt.net (166.49.209.5) 174.809 ms 173.428 ms 175.290 ms
7 t2c1-ge7-0.uk-lon2.eu.bt.net (166.49.176.43) 174.307 ms 173.663 ms 174.137 ms
8 t2c1-p4-2.uk-ilf.eu.bt.net (166.49.195.121) 173.701 ms 174.131 ms 174.706 ms —- UK
9 t2c1-p4-1.us-nyb.eu.bt.net (166.49.164.114) 262.680 ms 262.139 ms 262.649 ms
10 12.126.124.37 (12.126.124.37) 262.165 ms 263.717 ms 262.900 ms --- cable switch??
11 tbr1-p014001.n54ny.ip.att.net (12.123.3.1) 267.111 ms 268.056 ms 265.678 ms —- NY
MPLS Label=32418 CoS=0 TTL=1 S=1
12 tbr1-cl14.cgcil.ip.att.net (12.122.10.2) 283.064 ms 283.597 ms 283.689 ms
MPLS Label=31209 CoS=0 TTL=1 S=1
13 gar3-p360.cgcil.ip.att.net (12.123.6.1) 266.702 ms 267.757 ms 266.101 ms
14 12.118.183.94 (12.118.183.94) 270.930 ms 269.743 ms 269.101 ms
15 * * *
16 * * *
17 * * *
18 * * *
19 * * *
20 * * *
1.12.2006 3:36pm
John Lederer (mail):
On the Pacific routes, the cooperation of Japan would get you much of the traffic. Add in the Phillipines and New Zealand and you would have most covered.

Anybody off hand know the status of Guam under FISA?
1.12.2006 4:40pm
Just Wondering:
John, the relevant definition from 50 U.S.C. 1801(j):

"United States", when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.
1.12.2006 4:52pm
Mary Katherine Day-Petrano (mail):
Bruce, I was wondering what you think about the effect the quite omnibus Real ID Act and amendments will have on all this NSA FISA 4th Amendment stuff.

The Administration is at this point not wanting to give the States waivers on the May 11, 2008 effective date of everyone having to have a federalized driver's license, which will function in effect as a 'smart card.' Anyone who does not have this particular federalized driver's license will not (1) be allowed in federal buildings (including to access federal courts and administrative agency hearings), (2) be able to obtain any federal benefits such as Social Security retirement or disability, FEMA, food stamps, etc., (3) will not be able to have a bank account, (4) be able to travel on airplanes (and probably other mass transit), ETC. The driver's licenses will include facial reognition technology and porbably other biometrics, and there is some dispute over whether it will also include tracking capability such as a GPS now accomplishes -- wireless. In effect, because most States by law require a person to be in possession of the driver's license for indentification at all times, this tracking will be able to track everyone in every location at every mooent of every day, including in their homes.

The States are complaining now that this is an unfunded federal mandate, and also complaining that the electronic system they are required to have in place they were told would cost appx. $33 M now will cost, at least in Virginia, appx. $169 M plus appx. $63 M more to operate annually. It would appear this is yet another electonic feeder tributary to the massive data mining going on thru ECHELON and/or other various NSA electronic surveillance systems.

Now, unlike the "privilege" of a driver's license, numerous fundamental Constitutional rights will be denied to persons who are not able to obtain this federalized 'smart card' driver's license, including access to the federal courts, right to vote, right to travel, right to parent, entitlements, ETC.)

I am wondering how you think this is going to play out in light of the current NSA surveillance contoversy.
1.12.2006 11:26pm