The 14% Domestic Phone Content Collection under the Illegal Wiretap Program

Screen shot 2013-06-29 at 7.04.51 AMThere’s something funny about the claims the NSC Draft IG Report makes.

On page 8, the report notes:

Domestic Collection. The wording of the first authorization could have been interpreted to allow domestic content collection where both communicants were located in the U.S. or were U.S. persons. General Hayden recalled that when the Counsel to the Vice President pointed this out, General Hayden told him that NSA would not collect domestic communications because 1) NSA was a foreign intelligence agency, 2) NSA infrastructure did not support domestic collection, and 3) his personal standard was so high that there would be no problem getting a FISC order for the domestic collection.

Starting in February 21, 2006, DOJ pushed to get a FISC order for PSP collection, in spite of NSA’s numerous reservations. As an interim solution, they changed the definition of “facility” from that of a specific number of email address “to encompass the gateway or cable head that foreign targets use for communications. Minimization and probable cause standards would then be applied.” After months of trying to finesse this, FISC signed two orders to accomplish this:

The Foreign Content Order

The Domestic Content Order

Remember, domestic content, to the NSA, is content in which both participants are in the US (though at this point NSA may have been distinguishing between citizens and non-citizens). And when they moved to a FISC order, they had a specific order for domestic content. And, as the chart on page 16 shows, 14% of the telephony content was domestic (it was only 2% for Internet, though its number for that collection, 19,000, sure looks awfully round).

Now, apparently, by 2007 when they went to a FISC order, there wasn’t that much domestic collection left.

The Domestic Content Order did not create a similar loss in collection [as the 73% loss on the Foreign Content side] because so few numbers were tasked at that time. It did, however, slow operations because of the documentation required, and it took considerably longer to task under the order than under the PSP. Over time, the scope of the Domestic Content Order gradually decreased to a single selector tasked for collection in January 2009. In January 2009, at NSA’s request, assumed responsibility for the Domestic Content Order and became the declarant before the FISC.

This says they still had these gateway facilities in place 17 months after PAA passed (and NSA likely dumped it off onto FBI at that point to clean up in anticipation of Obama taking over).

The original authorization might seem to authorize domestic collection. And when they shifted to FISC rather than Presidential authorization, it continued to include domestic collection, though not so much, apparently, as when the program started.

 

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. Citizen92 says:

    When reports revealing the spying program (“eavesdropping program”) were emergent in 2005, I read that U.S. companies were treated as U.S. persons. If true, is this an important distinction? There are plenty of non-U.S. citizens who work for U.S. companies. Similar, there are plenty of U.S. companies overseas.

  2. greengiant says:

    Did they just give this barf to the IGs for the outer onion layer of lies about their programs? The first thing they probably do is create a plethora of changing programs to follow Churchill’s axiom to attend truth with a bodyguard of lies.
    “Collection” and “contents” do not refer to the dragnet into the mother of all data bases, they refer to when an actual human “collects” them?
    One can assume the NSA got real good at working their submarine optical cable tap splitters to both filter and suck down large amounts of data.
    Secondly, some of the same talent and concepts were then used for domestic, (as plain folk understand domestic), communications. Third, there are no domestic communications in NSA speak, unless and until an actual human uses his eyes or ears?

  3. TarheelDem says:

    What exactly do they mean by “facility”? And what is a “selector”? In the graph, what exactly is being counted?

  4. orionATL says:

    the obama admin’s defense of itself is largely based on legal rules it assures us protect our privacy.

    if senators wyden and udall want to attack that assertion they need to create a matrix (i’m talking rows and columns, not somebody’s jargon) somewhat like this, one matrix for PRISM and one for FISA extension act program(s)

    rows:

    1st american citizens in u.s.

    2nd non-american citizens in u.s.

    3rd american citizens living outside the u.s.

    4th non-american citizens living outside the u.s.

    the columns:

    1st formal claimed legal authority preventing wiretapping

    2nd formal claimed legal authority permitting wiretapping

    3rd, 4th, etc exceptions allowing or disallowing wiretapping of any cell in that column

    i can’t say that a matrix would be the most elegant format to use, but it might suffice to demonstrate what i would guess is the case, to whit

    that each and every one of the “checks” or “balances” that obama or clapper or alexander ballyhoo has one or more formal or informal “rules” that negate that check/balance and permit wiretapping in spite of that putative protection.

    an example would be bulk authorization by fisa court

    another, contact of an american with a non-american

    yet another, contact of an american in the u.s. with an overseas american

    yet another, nsa analyst’s judgement.

    the best way to end this massive spying on american’s by their own government is to shred the governments’ arguments that we are protected by formal legal safeguards.

  5. LeMoyne says:

    @orionATL: I think that the mainway may be simpler. There are at least two loopholes that can swallow the entire set of domestic acquisition/collection rules. Not that careful analysis isn’t useful in considering if oversight and restraint are even pssible

    This info is striking because the relative (%) measure of domestic vs foreign and the statements about changes in those numbers imply a functional ability to measure amount of domestic content collected. Udall and Wyden have asked for those numbers (& about the feasibility of getting those numbers) for two years.

    Seems clear that oversight is hollow because NSA has stonewalled the IntelCommitteePeople (ICP -lol) in Congress on the issue of domestic content.

  6. emptywheel says:

    @Citizen92: Yes, but once there’s a foreigner on the call it becomes a “foreign” communication.

    Though I suspect this arose out of “let’s target these suspicious people in the US and see if they call INTO terrorist pits like Pakistan from the US.” So it might be mosque communities.

  7. newz4all says:

    Glenn Greenwald speaks to the Socialism 2013 conference in Chicago regarding Edward Snowden’s revelations about the NSA’s mass surveillance program. Introductions by Jeremy Scahill, author of Blackwater and the filmmaker behind Dirty Wars, and Sherry Wolf, author of Sexuality and Socialism.

    “Another document that I probably shouldn’t but – since it’s not published – but I am going to anyway share with you – and this one is coming soon – but you are getting a little preview. It talks about how a brand new technology enables the National Security Agency to direct, redirect into its own repositories, one billion cellphone calls every single day, one billion cellphone calls every single day.” [emphasis in original]

    “What we are really talking about here is a globalized system that prevents any form of electronic communication from taking place without it’s being stored and monitored by the National Security Agency. It doesn’t mean they are listening to every call, it means they are storing every call and have the capability to listen to them at any time. And it does mean that they are collecting millions upon millions upon millions of our phone and email records.”

    “It is a globalized system designed to destroy all privacy. And what is incredibly menacing about it is that it is all talking place in the dark, with no accountability and virtually no safeguards.”

    http://wearemany.org/v/2013/06/glenn-greenwald-speaks-out

    http://www.socialismconference.org/

    via http://www.moonofalabama.org/2013/06/nsa-recording-one-billion-calls-per-day.html

  8. newz4all says:

    speaking/writing of surveillance

    License-plate readers let police collect millions of records on drivers

    “Do we really want to maintain a database that tracks personal movements of law-abiding citizens in perpetuity? That’s the fundamental question here. Larger and larger amounts of data collected over longer periods of time provide a very detailed look at the personal movements of private citizens.”

    http://cironline.org/reports/license-plate-readers-let-police-collect-millions-records-drivers-4883

  9. earlofhuntingdon says:

    @newz4all: Indeed. There are programs in which every license plate passing a static post is read. These could be at a speed trap, a traffic light, a stop sign. They can be manual: an officer in a car with a camera, a computer, and database access. They can be automated, placing the camera among the myriad devices now adjacent to traffic lights.

    Supposedly, these programs troll for license plates “associated with” an individual (or someone X degrees of separation removed from them) who has an outstanding warrant, which would allow a stop and arrest.

    The cost/benefit and privacy/public purpose analyses of even that purported purpose are questionable. More ominously, such “searches” allow for invasive pattern analysis akin to acquiring digital metadata. In this case, it is physical “metadata”, the tracking of local movement over time.

    Such data would reveal patterns: frequency, time of day, routes taken, time between passing static posts. The utility of the system is a function of the number of static posts, the duration over which the data is kept, and the capability (and accuracy) of the software trolling such new data troves. The data relates to the license, the car, and the driver tied to it, plus any data associated with any of them, a constantly growing dataset.

    That’s a helluva lot of resources – and a lot of taxpayers’ money, and corporate revenue and profits – devoted to creating and sifting through new databases in order to find a handful of needles, people who have already allegedly committed a crime. Such a system makes more sense, from the surveillance state’s perspective, if the point is to create another tool to monitor local movements of a populace in order better to control it. And to feed outsourced intel contractors’ endless need for growth and profits.

  10. orionATL says:

    @LeMoyne:

    “… I think that the mainway may be simpler. There are at least two loopholes that can swallow the entire set of domestic acquisition/collection rules. Not that careful analysis isn’t useful in considering if oversight and restraint are even pssible…”

    thanks; i think you’re right.

    i was thinking in terms of political strategy though.

    the senators can continue to question the generals, senior wh officials, etc., as they are doing now.

    however, their efforts would have a great deal more impact on the public if their criticism and questioning included detailed examples of formal nsa work rules, documented informal search behaviors, fisa court rulings, presidential or dod approvals/findings, etc.,

    that clearly indicated evasions and violations of the bill-of-rights and

    that clearly indicated that the “checks and balances”, “transparency”, laws and “lawfulness” of the nsa spying on american citizens with which the president and his advisors routinely assure us of the benignity of that spying were part of a carefully crafted shield of lies.

    it is clear that the purpose of this shield of lies is to allow the spying to continued UNMODIFIED, UNHINDERED by public scrutiny and criticism, and with the prez et al avoiding being held responsible to an angry public for the spying that has, in fact, been going on for years.

    from the standpoint of a political educate-the-public straregy, it’s “he said, she said” at present. the public can’t see any reason to be strongly against either side – wayden, udall, aclu, eff vs prez, national security vizars, or nsa.

  11. LeMoyne says:

    @orionATL: “from the standpoint of a political educate-the-public straregy, it’s “he said, she said” at present. the public can’t see any reason to be strongly against either side – … eff vs … nsa”

    Totally agreed on the possibility of MSM diffusion/distraction causing a net “meh” effect. Thats why opening the issue of journalism (cf. Greenwald speech to Socialism Conference, Charlie Rose interview w/Guardian’s top editors) may be the most important thing to come out of this … in fact it has to be the most important because of the potential for wide-ranging positive effect.

    Here is a frame that people should be given a chance to consider: The Leviathan database of all electronic communications is being passed to the FBI and through them and the fusion centers to business and local law enforcement. Now any cell phone call you make or take can and will be used against you in employment and legal action. Are there Miranda warnings in cell phone contracts or email account terms and conditions? Not hardly…

  12. orionATL says:

    @LeMoyne:

    thanks.

    “leviathan” for sure – and we’re jonah , only nobody has told us that’s our fate.

    were in the world could any of us be safe from this nsa-drone monster obama has birthed?

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