Wyden and Udall: They’re Blowing Smoke about Phone and Other Bulk Record Safety

When I wrote about the letter from Ron Wyden, Mark Udall, and 24 other Senators to James Clapper a month ago, I focused on the specter that Section 215 would be used to collect gun records (in response to which, the NRA let its political guns drop from flaccid fingers).

Given yesterday’s response from Wyden and Udall to Clapper’s response, I should have focused on this passage:

Senior officials have noted that there are rules in place governing which government personnel are allowed to review the bulk phone records data and when. Rules of this sort, if they are effectively enforced, can mitigate the privacy impact of this large-scale data collection, if they do not erase it entirely. Furthermore, over its history the intelligence community has sometimes failed to keep sensitive information secure form those who would misuse it, and even if these rules are well-intentioned they will not eliminate all opportunities for abuse.

In response to that passage, Clapper spent one paragraph talking about when the government can access this data and another describing the oversight over it, including,

Implementation of the program is regularly reviewed not only by NSA, but by outside lawyers from the Department of Justice and by my office, as well as by Inspectors General. The Executive Branch reports all compliance incidents on to the FISC.

Later, in response to a question specifically about violations, Clapper wrote,

Since the telephony metadata collection program under section 215 was initiated, there have been a number of compliance problems that have been previously identified and detailed in reports to the Court and briefings to Congress as a result of Department of Justice reviews and internal NSA oversight. However, there have been no findings of any intentional or bad-faith violations.

These problems generally involved human error or highly sophisticated technology issues related to NSA’s compliance with particular aspects of the Court’s orders. As required, those matters, including details and appropriate internal remedial actions, are reported to the NSA’s Inspector General, the Department of Justice, the Office of the Director of National Intelligence, the FISC and in reports provided to Congress and other oversight organizations.

To which Wyden and Udall insisted,

Their [in context, probably meaning NSA’s, though they did not specify] violations of the rules for handling and accessing bulk phone information are more troubling than have been acknowledged and the American people deserve to know more details.

Now, there are a couple of different things going on here.

First, as Wyden and Udall also note, Clapper didn’t answer their question, “How long has the NSA used the PATRIOT Act authorities to engage in bulk collection of Americans’ records? Was this collection underway when the law was reauthorized in 2006?” Clapper instead answered how long NSA was using Section 215 to get telephony metadata, answering May 2006. But we know that collection was briefed before passage of the PATRIOT reauthorization, and it appears the government used a kluged hybrid order to get it from at least the time the illegal program was revealed in 2005 until the reauthorization passed.  So this earlier use may implicate earlier violations.

Nevertheless, what Clapper claims to be human error seems to be something more, the querying of records pertaining to phone numbers that aren’t clearly terrorists (or Iranians).

And given the revelation the government has gone three hops deep into this data, the reference to “highly sophisticated technology issues” suggests more sophisticated data mining than a game of half-Bacon.

Finally, one more thing. In the debate over the Amash-Conyers amendment the other day, House Intelligence Chair Mike Rogers also boasted of the controls that — according to Wyden and Udall — have proven insufficient. But in the process of boasting, he admitted other agencies have less effective oversight than the NSA.

It is that those who know it best support the program because we spend as much time on this to get it right, to make sure the oversight is right. No other program has the legislative branch, the judicial branch, and the executive branch doing the oversight of a program like this. If we had this in the other agencies, we would not have problems. [my emphasis]

When Wyden and Udall asked this question originally, they asked specifically, “Have there been any violations of the court orders permitting this bulk collection, or of the rules governing access to these records?” While most of their questions specified NSA, that one didn’t. The FBI, not NSA, is the primary user of Section 215, though it shares its counterterrorism (and counterespionage) data with the National Counterterrorism Center.

And even Mike Rogers appears to believe “the other agencies” have problems with this kind of data.

All of which seems to suggest there have been serious problems with the NSA’s use of the phone record dragnet. But there have been even more serious problems with bulk records on other subjects as used by other agencies.

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.

6 replies
  1. peasantparty says:


    Your work on this issue is absolutely the best. I keep thinking about reports from a year or so ago about FBI agents going wrong.
    I’m sure you remember all those reports about FBI agents busting doors into pieces in the middle of the night on innocent citizens. They said they were doing so in order to capture wayward Govt. Student Loan delinguents.

    Could some of these type of problems be what some of the concern is with members of Congress?

    Then I think back to why we are in this situation post 9-11, when we were told that the reasons were that Intell Agencies did not share info in order to catch the perps beforehand.

    Since then I’ve heard that same excuse used over a dozen times to explain away the Boston Bombings.

    Either way the NSA, FBI, and CIA are going to have to come clean and say they are doing this as part of the MIC cash cow, or that they just F’ed up everything to scare the hell out of people in order to control them. I’ve been pounding for years about UN-lawful secret laws and secret courts are, but the secrecy has to end. Nobody in the US wants to be surveilled like caged animals in a lab. There is not enough terror to justify them knowing what toilet paper we use to wipe our asses with!

  2. peasantparty says:

    Also, Clapper’s less untruthful responses are reason enough for Congress to go beyond him and demand complete closure and overhaul.

    If the few members of the Inell Committee have only been given enough info in order to approve whatever they want to do, then the secret level of the programs need to end.

    I have a child that has ADD and Autistic symptoms. I can tell you all about special wording to get the correct answer from school systems. They will sit there and lie to you all day long without flinching simply because you did not ask using their preferred terminology.

    So, it all depends on what “is” is!

  3. newz4all says:

    Mark Udall and Ron Wyden: The White House should end the bulk collection of Americans’ phone records

    We urge the administration to end bulk collection of Americans’ phone records. We will push to pass our legislation, which would effectively do the same — and thereby focus this country’s counterterrorism and espionage efforts on the real threats to our national security.


  4. newz4all says:

    Wyden: Don’t conflate surveillance programs

    Americans may be getting a distorted view of the importance of the National Security Agency’s phone-call-tracking program because officials often blur the lines between that program and a web-traffic interception program that targets foreigners, Sen. Ron Wyden (D-OR) said Tuesday.

    “There has been an effort by officials to exaggerate the effectiveness of the bulk phone records collection program by conflating it with the collection of Internet communications under section 702 of the [Foreign Intelligence Surveillance Act] statute. This collection, which involves th ePRISM computer system, has produced some information of real value,” Wyden said in a speech to the Center for American Progress. “I won’t deny that this value exists. Meanwhile, I have not seen any indication that the bulk phone records program yielded any unique intelligence that was not also available to the government through less intrusive means.”

    Wyden complained of what he said was not just executive branch secrecy about the programs, but misdirection. “The public was not just kept in the dark about the Patriot Act and other secret authorities. The public was actively misled” he said.


  5. thatvisionthing says:

    I truly admire those who can dive in the rabbit hole and try to sort out the tunnels. Huge hat tip to emptywheel and the wheelhouse gang who can. Hat tip to Wyden and Udall and Warren and Merkel and others I’ve seen trying to shake some honesty out of something that is deeply dishonest, and shine light into something that is truly dark. I’m not just talking about the NSA, I’m thinking about banks and fraudclosure and other government-sponsored crime. This nation is sick.

    But what a crappy story. There’s this funky looking-glass that everything filters through where what is named is really what is not. Justice is injustice. Intelligence is stupid. National security is national destruction. Maybe it’s the nature of mirrors, I don’t know, but from where I see it’s sick. And I am sick of it.

    Can we cut to the chase? Can we stop playing this stupid game? Now?

    Are we supposed to watch this dance between Wyden/Udall and Clapper/Alexander/Obama/Brennan/Feinstein and believe that it’s going to go somewhere worthy, that there’s a baby in this cesspool to save so keep diving? I fail; I cannot suspend disbelief. You know you can’t believe Clapper/Alexander et al, and you know you can’t do oversight or correcting, and that’s the tell. So flush em. This is stupid.

    Nothing they do is about perfecting our union; it’s all about dividing us among ourselves into enemies and witches and playing dark games in the hallucinogenic gas of paranoia. They, of course, get to be the diviners. Nothing they do is about light and constitutional democracy; it’s all about demonizing and disenfranchising all of us, corrupting democracy, disabling reason. Death, control, and the pursuit of witches. Maybe on their side of the looking glass it doesn’t look like that, but on this side that’s all I see. Plainly.

    Just stop this.

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