What Did BushCo Hide By Not Revealing Surveillance Activities?

Via Threat Level, I see the EPIC has written a letter to Pat Leahy complaining about the Bush Administration’s failure to comply with requirements that it release details on the number of "pen register" and "trap and trace" orders.

As a reminder, "pen registers" are when the government collects the metadata from your telecom contacts–the phone numbers you call and the length of calls, as well as whom you email–to figure out who you’re talking to. And "trap and trace" orders are when the government figures out who is calling (or emailing) you. In addition, the EPIC letter explains that law enforcement has recently been using "hybrid" orders to pinpoint cell phone (and therefore, your) location.

Law enforcement agents use "hybrid" orders for cellular location information. Hybrid orders seek to determine a suspect’s past and future location based on non-content data transmitted by the suspect’s cellular phone. The government has engaged in this type of surveillance by invoking a combination of authorities under the Pen Register Act and the Stored Communications Act.

For pen registers and trap and trace, the government doesn’t have to get a warrant (the hybrid stuff is still up in the air). Instead, since 1986, DOJ has been required to report how much of this stuff is going on.

But, as EPIC explains, DOJ didn’t release the report publicly for the years 1999 through 2003, and only gave incomplete information to Congress at all in November 2004. And DOJ  appears not to have released reports at all since 2004.

You probably see where I’m going with this. 

We know, of course, that Bush’s illegal wiretap program involved some kind of data mining aspect.  It appears that they were doing pattern analysis based on things like length and recipient of call–precisely the kind of thing you get from pen registers–to determine whom to further wiretap.

Yet we have only incomplete information from the first three years of Bush’s illegal wiretap program. EPIC explains that DOJ did not include the suspected offenses that law enforcement officers were trying to investigatre, nor did it list which officers were doing the investigations.

And then we have nothing–no data–for the years after Jim Comey and Jack Goldsmith supposedly put the illegal wiretap program back on legal footing (and remember–the data mining aspect of the program was reportedly one of the things that Comey et al went crazy over). 

Now, the failure to report any information may be at least an attempt on the part of the Bush Administration to hide abuses of these authorities (How useful would it be, for example, to learn precisely how often Chris Christie–who is running for governor in NJ–used these "hybrid" orders and on whom?). But I’m more interested in whether, after the Comey rebellion, they decided to justify data mining using an expansive application of pen registers; I’ve already shown that they actually used a hybrid approach to justify the program itself, and I would be unsurprised if an abuse of pen registers is part of it. 

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

16 replies
  1. klynn says:

    Goodness, it seems to come back to the “Watergate model” quite a bit during those eight years…

  2. susiedow says:

    What Did BushCo Hide By Not Revealing Surveillance Activities?
    That data was willingly provided by the telecoms hence no need for “orders” of any kind.

    • bmaz says:

      There is no basis for you saying that. The telcos don’t do anything they don’t have to willingly. They would need a formal demand and they actually charge the government for much of their efforts (although this may or may not be specifically billed for in a detailed manner).

        • bmaz says:

          I am quite familiar with Hepting. But, nevertheless, the only things telcos do willingly are those that are profitable. I am not saying they are not doing a whole host of activities, they are, but rest assured that they are either being paid for doing it or they are doing it very begrudgingly. That is just who and what they are.

          • susiedow says:

            Unless I am mistaken, you are assuming an “order” equates a written obligation for a specific service during a specific time period resulting in a specific contract. It’s far more likely the government used task orders under existing government contracts assigned to benign activities to mask actual service. So yes, the government paid for what it got but it’s extremely unlikely there’s a paper trail. And that says to me that AT&T and its brethren were very much willing participants in what transpired.

  3. perris says:

    pretty certain we’re going to find congress and senate critters in those logs, finding out who spoke to who at what particular period of lawmaking time

  4. readerOfTeaLeaves says:

    Wall Street melts down, Madoff is blowing financial smoke for years, online banking comes into existence, and the Bush administration couldn’t figure out that perhaps data mining might show up some economic corruption?

    Interesting that the period of 1999 – 2003 jibes with the period of time just after Phil Gramm walked credit ’swaps’ through Congress so they wouldn’t be regulated. And then he joined UBS, which was siphoning money out of the country (along with plenty of others) as quickly as possible. That period was the height of Enron’s speculation and collapse, and during the period when bullshit mortgages and swaps were in the making.

    A functioning law enforcement operation might have been able to track those things. So maybe a feature, not a bug?

    Or they only limited ‘law enforcement’ to political black ops. Alas.

  5. ezdidit says:

    Qwest CEO Not Alone in Alleging NSA Started Domestic Phone Record Program 7 Months Before 9/11

    Startling statements from former Qwest CEO Joseph Nacchio’s defense documents alleging the National Security Agency began building a massive call records database seven months before 9/11 aren’t the only accusations that the controversial program predated the attacks of 9/11.

    According to court documents unveiled this week, former Qwest CEO Joseph Nacchio clearly wanted to argue in court that the NSA retaliated against his company after he turned down a NSA request on February 27, 2001 that he thought was illegal. Nacchio’s attorney issued a carefully worded statement in 2006, saying that Nacchio had turned down the NSA’s repeated requests for customer call records. The statement says that Nacchio was asked for the records in the fall of 2001, but doesn’t say he was “first asked” then.

  6. ezdidit says:

    Preparations were well under way for violation of the Constitution SEVEN MONTHS BEFORE 9/11 !!!

    Why is nobody pressing this ???

  7. MartyDidier says:

    Because they are directly involved in a World Wide Drug Distribution system which my ex-wife’’s family is directly involved in. To run such a huge drug system you have to keep track of everything you feel may be a threat so you can put out fires before they get out of hand.

    Meet the family:
    Mexico drug plane used for US ‘rendition’ flights: report Sep 4, 2008
    http://afp.google.com/article/…..-xUcQEZbVg

    There’s actually so much more that I could fill up this entire hard drive, but I’m trying to be nice and make this post small. It’s going to be most difficult to understand yet believe all that is involved in this.

    Marty Didier
    Northbrook, IL

  8. judyo says:

    Have you not read “Family of Secrets” ??? It answers just about all questions in regard to the Bush “administration”

  9. Hmmm says:

    In addition, the EPIC letter explains that law enforcement has recently been using “hybrid” orders to pinpoint cell phone (and therefore, your) location.

    Um. One can’t help wondering whether the USG at some point figured out that if they got that data for all the accounts, they had the potential to start tracking the locations of all cellphone owners — essentially all American adults. That could work either by data-mining in retrospect (to determine where any particular person had been at any given time of interest, or to trace their movements over time), or else with enough computing, you could tell where anyone currently is, in real time. If they had ever actually implemented that, then that might explain both the Ashcroft revulsion and the Bush administration failure to file those reports.

    • JohnJ says:

      All cell phones since 2005 are required to have GPS tracking, supposedly for “emergency” 911 calls.

      Don’t believe for a minute that the government didn’t demand full access to this ability.

      There was the same demands from the law enforcement industry (LawCo?) for access to the internet and cell phone use monitoring from day one of both technologies so that “bad guys” (always the boogey man “drug dealers”) couldn’t run rampant with their use. It terrified them in the beginning that we might get ahead of their monitoring capabilities with our unmonitored communications.

  10. lysias says:

    I have always refused to have a cell phone. There have been a number of reasons (I want to be unreachable by my office at times, plus the current health concerns about cell phones,) but my primary reason has always been to make it harder for the authorities to track my movements. The more people do this, the harder it will be for them to establish a police state.

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