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The Other NSA Surveillance Program?:
Those who were following the NSA domestic surveillance story back in January will recall that Attorney General Alberto Gonzales strongly hinted that there was another surveillance program out there that remained top secret. Well, it looks like that program may now have been leaked, too. Thursday's USA Today breaks the story:
  The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.
  The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans โ€” most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.
  "It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.
  For the customers of these companies, it means that the government has detailed records of calls they made โ€” across town or across the country โ€” to family members, co-workers, business contacts and others.
  The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said. The program is aimed at identifying and tracking suspected terrorists, they said.
  For more on the program, see here.

  Thanks to an anonymous commenter for the link.
Californio (mail):
Great. Now if they would only transcribe my calls - then I could figure out what the heck callers are trying to say on my mobile (plauged with crappy reception).
5.11.2006 4:02am
Cornellian (mail):
I'm suprised you didn't mention the part about some public interest group's lawsuit against one of the phone companies involved, and the federal government's intervention in it in order to bring a motion to dismiss the suit on the basis of a national security privilege.
5.11.2006 4:11am
wb (mail):
How can anyone be surprised at this information as such a database is a logical starting point for the warrantless surveillance program? Expect a further non-surprise, after a few wimpers of protest from the "loyal opposition," they will cave into silent acquiescence.
5.11.2006 8:39am
Paul Gowder (mail):
God, this is so depressing. We've completely lost control of our government.
5.11.2006 10:21am
Jeek:
If they want to listen to me call my wife and ask her to pick me up at the park and ride, they can go right ahead. I sure hope they're not wasting their time listening to a zillion banal daily conversations. That would be as senseless as searching grannies, cripples, and small children at the airport!
5.11.2006 10:23am
DK:
I'll admit I just don't see any problem with this one. I don't feel that my privacy is harmed in the slightest if my database entries are scanned by a computer scanning millions of people's entries. I do feel my privacy is harmed if a person deliberately selects my phone call to listen in. In fact, as the volume of digital information grows, it will be increasingly hard for automatic searches to violate any individual's privacy -- the volume is just too great for anything but cursory overviews.

This may be b/c I am a computer scientist, and I am well aware that everything we do is being scanned and analyzed frequently by private companies. AT&T is analyzing our call patterns, Google is analyzing our mail and internet searches, and everyone is analyzing our credit card purchases. Does it really hurt me if the NSA gets in on the act?

What we need to be doing is to prevent IRS agents from snooping on their neighbors' tax files, not preventing computers from doing broad pattern recognition. I'm much more afraid of abuses by government employees going through paper files than of anything they can do with computers.
5.11.2006 10:30am
Al Maviva (mail) (www):
18 USCS ยง 2709 may authorize this, not sure. Gee, I wonder where we could find an expert on the Electronic Communications Privacy Act around these parts...

If this is unlawful, I'm glad we have the heroic NY Times taking a principled stand against the encroaching police state, but I hope they are prepared for yete another leak investigation. Of course if it is lawful, it will be another nice disclosure of an intelligence program which AQ and other terrorist elements will no doubt heed, and adjust to accordingly. Not that the possibility of lawfulness should cross our minds, since it sounds like such a juicy soundbit against the administration.
5.11.2006 10:33am
Gonerill (mail):
This may be b/c I am a computer scientist, and I am well aware that everything we do is being scanned and analyzed frequently by private companies. AT&T is analyzing our call patterns, Google is analyzing our mail and internet searches, and everyone is analyzing our credit card purchases. Does it really hurt me if the NSA gets in on the act?

Yes! For one thing, Google and AT&T can't lock you up if they feel like it. Is this point really so difficult to grasp? The state has a lot of power, including -- in the present case -- the claimed power to detain and "render" anyone it feels is a threat to national security, all without much in the way of court oversight. Couple that to a gigantic database whose analyses will certainly produce false positives. Do you care yet?
5.11.2006 10:45am
Daniel Chapman (mail):
Is there a reasonable expectation of privacy in the fact that a phone call was made? Does the fact that everything is connected through a switch controlled by the phone company mean the caller has exposed that information to the public?
5.11.2006 10:47am
Just an Observer:
Interesting details from near the bottom of the USA Today article, concerning the fact that Qwest -- alone among major telecom companies -- balked at complying with the NSA's request:

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.
5.11.2006 11:02am
dick thompson (mail):
It would be interesting to find out who these sources who are so familiar with this program are and just what their reason for leaking it is. That is above and beyond whether this is even true in the way it is portrayed. Tomayto, Tomahto. your interpretation is based on your politics in this one.

As of right now we do not know if this is even true and if it is at least partially true how the program is run and what it tracks. Wonder if the sources were sending in theinformation from a Kinko copy shop in Texas.
5.11.2006 11:22am
Seamus (mail):
Yet another reason to be unhappy that Verizon beat out Qwest in the bidding for MCI.
5.11.2006 11:26am
Mr. X (www):
Okay Professor Kerr, does this one violate the 4th Amendment?

I'm sure General Hayden would like to know.
5.11.2006 11:28am
Chris B (mail):
uh, people....


This program does not involve the NSA listening to or recording conversations.


IIRC, something like this was discussed during the initial round of wire-tapping disclosures. My recollection is that 'switch log' data such as this is not subject to wire-tapping regulations, though it probably is subject to ordinary search warrants.
5.11.2006 11:45am
Just an Observer:
This type of identifier-only information would seem to fall within the intent of the laws governing court orders for "pen registers," which in FISA would be 50 USC 1842.

The requirements for such court orders are quite permissive, requiring only "a certification by the applicant that the information likely to be obtained is foreign intelligence information not concerning a United States person or is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution."

However, it appears from the USA Today story that no such court orders were issued or sought. It seems risible to pretend that even the standard of "relevant to an ongoing investigation" could be stretched to include every call made by every person in the country every day.
5.11.2006 12:12pm
Jam (mail):
I am a programmer and databse designer/programmer and I find this data mining by the government odious and problemtic. Who knows what are the search criteria that causes people to be flagged?
5.11.2006 12:18pm
Jam (mail):
Are we not supposed to be secured in our persons and property? Where is the search warrant and probable cause? I object.
5.11.2006 12:20pm
Abdul (mail):
As Daniel Chapman suggested, the Supreme Court's reasoned that a person has no expectation of privacy in dialing a phone number since, by necessity, that data is released to a third party in order for the call to go through. Smith v. Maryland, 442 U.S. 735 (U.S. 1979). While there may be some statutory issues raised, there's no 4th amendment issue if the government doesn't listen to the content of the calls.
5.11.2006 12:30pm
Jam (mail):
Isn't the 3rd party also a private entity?
5.11.2006 12:48pm
Medis:
I don't know enough yet to determine whether this program is legal, but I wonder if it will be politically more damaging than the prior revelations. In particular, as I understand it, if you are an American, and unless you are a Qwest customer, your call records are sitting in the NSA database as we speak. So at the very least, most Americans will know that they are subject to this program. And that strikes me as something new.
5.11.2006 1:20pm
DK:
Gonerill wrote:

Yes! For one thing, Google and AT&T can't lock you up if they feel like it.


Neither can the NSA. Nor, really, can any other government agency without some evidence that can be presented to a court without disclosing the existence of a secret program.
5.11.2006 2:36pm
Medis:
DK,

But does the Administration share your view--if, say, the person has been designated an "enemy combatant"?
5.11.2006 3:09pm
Josh_Jasper (mail):


Neither can the NSA. Nor, really, can any other government agency without some evidence that can be presented to a court without disclosing the existence of a secret program.



Unless Bush declares you an enemy combatant.
5.12.2006 3:08pm