Mark Warner Lays Out How USA Freedumber Will Put the NSA in Your Smartphone

I noted this yesterday in a quick post, but I wanted to post the video and my transcription of Mark Warner’s efforts to lay out some of the privacy problems with HR 3361, which I call USA Freedumber.

Warner, who made his fortune as a telecom mogul, points out that USA Freedumber will be able to access calls from smaller cell companies that are currently not included as primary providers to NSA (he doesn’t mention it, but USA Freedumber will also be able to access VOIP).

Warner: It was reported when we think about 215 in the previous program that that collected metadata that was with those entities — those companies — that entered into some relationship with the IC, and I believe there was a February WSJ article that reported — and I don’t want to get into percentages here — that while the large entities, large companies were involved, that in many cases, the fastest growing set of telephone calls, wireless calls, were actually a relatively small percentage. Is that an accurate description of how the press has presented the 215 program prior — previously?

Ledgett: Yes, that’s how the press represented it.

Warner: And if that was an accurate presentation, wouldn’t the universe of calls that are now potentially exposed to these kind of inquiries be actually dramatically larger since any telco, regardless of whether they had a relationship with the IC or not, and any type of call, whether it is wire or wireless, be subject to the inquiries that could be now made through this new process.

Ledgett: Uh Yes, Senator, that’s accurate.

Warner: So, again, with the notion here that under the guise of further protecting privacy, I think on a factual basis, of the number of calls potentially scrutinized, the universe will be exponentially larger than what the prior system was. Is that an accurate statement.

Ledgett: No, Senator, I don’t believe so, because the only calls that the government will see are those that are directly responsive to to the predicate information that we have.

Warner: No, In terms of actual inquiries, correct, but the the universe of potential calls that you could query, when prior to the calls were only queried out of the 215 database that was held at the NSA, which as press reports said did not include — in many cases — the fastest growing number of new calls, wireless calls, now the universe of — even though the number of queries may be the same, because the protections are still the same, the actual universe of potential calls that could be queried against is dramatically larger than what 215 has right now.

Ledgett: Potentially yes, that’s right Senator.

From there, Warner focuses on a more troubling issue: the likelihood that NSA could get cell location data and call detail records with the same request. Ultimately James Cole (who steps in for DDIRNSA Richard Ledgett) does not deny that under this program NSA will be able to get call records at the same time as getting phone location information.

Warner: That’s a fairly big additional yes. Let me just go to one other additional item. One of the things, again I check with staff to make sure this is all appropriate to be asked here, is that one of the things that 215 did not include was location information. The nature of wireless telephony is, having had some background in that field, you can identify where a cell phone call originates. What kind of privacy protections do we have in this legislation to ensure that location data will not be queried [Ledgett starts looking around for help]  on a going forward basis, since the telcos who hold this data hold not only the billing data but hold the location data as well.

Cole: I think that would be up to the specific request in specific court orders. I mean, right now, in law enforcement contexts, when we have a good basis for it, we can go and get location information. Sometimes it’s very valuable, I can think of one instance where it saved somebody’s life, who had been taken hostage, being able to get location information quickly. It won’t be collected in bulk, it’ll be collected in each individual circumstances that warrants it by showing the court that in fact this is information that is relevant–

Warner: But in the previous 215 Section where the data was held, the megadata was held at NSA, the location data was not–

Cole: That’s correct, we didn’t get the location data with what was held in the database at NSA and then could be queried within NSA’s protection, but we could always have the ability to go back to the telephone company providers in an appropriate circumstance and ask them for individual location information that we thought was warranted.

Warner: But that would require an exceptional step, I’m talking now not so much on the law enforcement side. I’m talking more on the IC side.

Cole: Right. And that’s what’ll happen now. Under this bill–

Warner: Would they be combined into a single step or a dual step.

Cole: It could be I think it would require the court to look at whether or not it thought it was appropriate under the facts and circumstances of the request to provide location information as well as the call data records. Or whether or not only the call data records were appropriate. Just depends on the circumstances.

Warner; Again, my time is expired and I appreciate I think that it is essential to the public, that while we’re trying to get this balance right, and you know understandably public great deal of concern about the government holding the data, I think as a number of us have outlined, there lies a number of concerns that privacy advocates should also be concerned about in terms of both the scope of the amount of data, potentially even greater access if we’re able to go at this at the telcos, and again, re-emphaiszing what a couple of my colleagues have said, my hope is there will be an additional higher level of security standard and a higher level of training and a higher level of commitment from the telcos of these individuals who are going to have access to the data–I don’t think they’ll ever get to the standard of the folks at the NSA. But this is an issue that needs to be thoroughly vetted.

Warner still seems to be missing one part of this (he ended his operational involvement in cell phones before the explosion of smart phone use). NSA is chaining, here, not exclusively on chains of calls made, but on connections. And whether or not NSA makes a dual request to receive cell location, the analytical process seems to permit the use of cell location to chain cell phones in regular proximity, even if they never call each other (again, DEA is already doing this under the Hemisphere program, so it would be crazy to imagine that NSA wouldn’t demand at least what DEA has in place).

But now that Warner has gotten Cole to admit they seem to have envisioned dual requests — including both call detail records and cell location — it opens up the possibility that they’ll issue triple requests, obtaining call detail records and cell location as well as Internet content or other smart phone functions (like calendar data or photographs). Zoe Lofgren has already gotten Cole to admit that Section 215 could be used for far broader uses like that (including URL search terms and credit card records). If Section 215 can be used to access all the functions of a cell phone, and if NSA can issue hybrid requests like this, then the privacy implications of USA Freedumber really do amount to putting the NSA right into your smart phone.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

23 replies
    • lefty665 says:

      .
      Surely you don’t confuse Warner with a “competent, caring, highly experienced political leader”. I ask that as a Virginian who worked as a Democrat for Warner’s election as both Governor and Senator (you should have seen what he was running against, ugh).
      .
      Warner’s “radical centrism”, expressed in part by his crusade to gut Social Security and his “bipartisan working across the aisle” with Repubs like his buddy Chambliss to subvert rational economic policy is uncaring, and a disgrace, not to mention nauseating.
      .
      Warner is the epitome of the Dems who slither ever rightward to stay one step left of the worst of the Repub dingbats. They then tend to preen and pride themselves as representing the oh so reasonable “center”, and to seek election as the “lesser evil”. Warner is certainly competent and highly experienced at leading that kind of politics. He is also one of several reasons we are no longer Dems.
      .
      Perhaps you have confused Warner with Jim Webb, a recent Virginia Dem senator, who actually pretty much fits your description.

      • orionATL says:

        i understand your frequently expressed antipathy toward senator warner. you may be right; i think you’re way off the mark.

        in any event, warner is indeed a competent caring political leader. because his votes on issues you have mentioned would not have been your votes or my votes does not make him any less so.

        warner has something that way too few american political leaders have; he has a lifetime, literally, of experience in politics. he has been a political administrator (governor) as well as a senator. he has also been a political apprentice.

        as for your being a citizen of virginia and having worked for warner in an election as the basis of your negative evaluation of the man, have you forgotten or discounted the good works he performed in dealing with state taxes and schooling and his administration’s concern for the well-being of children including, as i recall, the CHIP program for medical care for children.

        many an american political leader could wish they had these very progressive accomplishments in their portfolio, and in a state with a strong right-wing-mean, religious nut-case, political army.

        • orionATL says:

          the biggest knock on warner that i have is that he went to harvard law. as those who read here know, i have a severe negative view of harvard law graduates – and increasingly of its faculty.

          perhaps warner has been saved from the curse of that experience by never having practiced law.

        • lefty665 says:

          Our opinions vary. Dunno where yours come from, but mine are formed from around 15 years of experience with Warner, the majority of it up close as a Virginia Democratic Party functionary (minor).

          To assert that a Democratic politician with a personal fortune in excess of $100 million on an extended crusade to gut Social Security rather than FICA tax a little more of rich people’s income is a “competent caring political leader” is delusional. For 90+% of the country it sucks.
          .
          To assert that Warner has “a lifetime, literally, of experience in politics” is flatly factually wrong. He made his bones in the cell phone business and came to Virginia politics after that. A term as Gov and most of another as Senator are nothing to sneeze at, but they sure ain’t “a lifetime, literally”.
          .
          There were no “good works” in dealing with state taxes or schooling unless you consider an absence of “bad works” good works. In light of a couple of our recent governors, and the current House of Delegates, that might be a an arguable position. However, you may want to look at the social program spending offsets Warner as Senator has advocated as the price for programs like CHIP.
          .
          Warner has no portfolio of “very progressive political accomplishments”. That is precisely the issue. Mark Warner is not a progressive, nor does he portray himself as one. In most other states he would be a Repub, and on the right end of the spectrum.
          .
          Warner trumpets his role as “radical centrist” and is one of the Dems, like O and the Clintons, who have scampered to the right with the Repubs. None of them are “progressives” in any meaningful sense of the word. Their failure to fight for fundamental Democratic principles like the New Deal, Social Security, unemployment insurance and decent fiscal stimulus to help the country recover are in large part responsible for the slaughter in Virginia in 2009 that was a harbinger for the Congressional elections of 2010. 2014 looks likely to be a repeat of 2010, and for the same reason. Voters are sick of Democrats who stand for nothing and are unwilling to fight for the principles of the Democratic Party.
          .
          You do have one thing absolutely right, Virginia is a state “with a strong right-wing-mean, religious nut-case, political army”. Virginia, and the state Democratic Party, were extremely fortunate that the Teabaggers were successful in nominating a right wing nut case ticket in the governor’s election last year. They all lost. That army currently is not strong enough to win a state wide election.
          .
          The Repub convention to nominate a senatorial candidate is today. The expectation is that the empire strikes back strategy of the Repub mainstream will produce Ed Gillespie to oppose Warner. Gillespie, in contrast to Warner, does have a “lifetime, literally, of experience in politics” that goes back to a decade as a staffer for Dick Armey and subsequently as a principal drafter of Newtie’s Contract on America, chairman of the RNC (VA state committee too) etc, etc, etc. He is very bright, knows Virginia, and will run a real campaign against Warner. My short term hope is that Warner will prevail and the Dems retain the Senate. My long term fear is that will encourage more of Warner’s craven, regressive and disastrous “radical centrism” as well as fuel his ambitions for higher office.

  1. Les Moor says:

    That is a revolting thought. The NSA has replaced Chickenman… they’re everywhere, they’re everwhere!

    On a side note, Mark Warner meant “metadata” but said “megadata”. I understand that’s going around on Capital Hill these days.

  2. ess emm says:

    Warner asks great questions. And I saw the Heinrich grilling of Cole you linked on Twitter—Heinrich asked great questions and expressed skepticism, too.

    And what attentive ears you have, ew! Cole asserting the FISA court had authorized the collection of Internet metadata is news.

  3. lefty665 says:

    EW, what woke Warner up? He has been a Feinstein/Chambliss toady. It seemed likely it was a contested re-election, but is there something else? Old buddies in the telecom business unhappy and lobbying him maybe? His rational questions are completely out of character.

    • emptywheel says:

      I think Warner prides himself on competence. And the competent thing here is to actually figure out what happens before you pass a law. And he was also showing off his (dated) telecom knowledge.

      Sadly, this shouldn’t be that radical. These kinds of questions are very very basic, but not many people are asking them. Hell, not even Wyden is asking the questions that could sink this in its current form.

      • lefty665 says:

        Warner has kept profoundly quiet for years and has been a solid vote for everything the committee has done. He has been far to the right of Wyden. Why the sudden concern about this expansion of intrusiveness? Why now? Why has this dog suddenly decided to bark? It is out of character and a big red flag that something has changed.
        .
        I appreciate that he is asking the right questions, and that you are right on his self perception and showing off. But, over the years that has never been enough to get him to take a public position that could make his benefactors uncomfortable. Why is this day different from all others?

        • wallace says:

          quote”Why is this day different from all others?”unquote

          He saw the bottom of the abyss from 20 feet. It was sitting at a table in front of him.

  4. wallace says:

    quote”Hell, not even Wyden is asking the questions that could sink this in its current form.”unquote

    As much as I appreciate Wyden’s grilling the IC, I still get the feeling there is something holding him back. What really bothers me though, is it doesn’t take an Einstein to see what the NSA has done since the Church hearings. His warning fell on deaf ears. And here we are. I only wish there were a Senator with Church’s courage. All I know is we are almost at the bottom of the abyss. And like Senator Church said… there will be NOTHING we can do anymore. Except..revolt. And the USG knows it…hence…Holder’s resurrection of Janet Reno’s Frankenstein….

    http://battlefieldusa.wordpress.com/2014/06/03/domestic-terrorism-executive-committee/

    At least one person is paying attention,…to the point of telling Holder to shove it up his ass..

    http://sipseystreetirregulars.blogspot.com/2014/06/my-third-and-i-hope-my-last-open-letter.html

    Frankenstein indeed. We’ve arrived. The Star Chamber is alive.

  5. orionATL says:

    “…to assert that Warner has “a lifetime, literally, of experience in politics” is flatly factually wrong. He made his bones in the cell phone business and came to Virginia politics after that. A term as Gov and most of another as Senator are nothing to sneeze at, but they sure ain’t “a lifetime, literally”…”

    warner has been working in politics at least since he was an undergraduate when he worked on capital hill. clearly, warner views politics as his calling.

    warner’s work with the va legislature to rework virginia’s tax system, and his manipulation of tax money for purposes beneficial to virginians came to be admired by his constituents.

    warner’s position on social security is highly suspect in my mind. as with the position of other debt alarmists, i need to see the explicit, detailed reasoning justifying it before accepting any part of it; that reasoning never seems to be forthcoming.

    nonetheless, in virginia or out you will look a long way before finding many highly experienced leaders like warner. he’s not the only one, nor necessarily the best one, but he is one of that small group of americans –

    one can remember back to 2008 in the dem party and recall the contempt with which having had experience as a political leader was held as a criterion for being a worthy presidential candidate.

  6. lefty665 says:

    I surely accept your reformulation that Warner considers politics his calling. That is supportable.
    .
    You gotta provide chapter and verse on the tax system. What he did do was convince the Repubs in the General Assembly to do more than they were inclined to do for the people of Virginia. That is a long way from reworking the tax system.
    .
    Warner’s positions are highly suspect to you? What the h*ll is the matter with you? His positions, and those of his fellow travelers, should have set your hair on fire. How long are you going to wait?
    .
    “he is one of that small group of americans (sic)” That group includes Bill, Fat Al, Kerry, Obama and Hillary. They have screwed us, and the world massively, and have transformed the Democratic Party into right wing, DLC, repub lite, mostly neo-con wannabes.
    .
    We now know that inexperienced Obama could screw things up as badly as political veterans Bill, Fat Al and Kerry. Obama has been profoundly ineffective in part because his naivety was exploited: leaving repubs and neo-cons in place (team of rivals, what a crock), economics/regulation, foreign policy, national security, capitol hill. It took awhile for him to get better at screwing things up (Afghanistan, ongoing stimulus, tax cuts for the rich, health care, NSA). He will be leaving the right wingers in place (think Victoria Nuland at State). Experienced Hillary knows them all and will be ready to partner to screw us worse from the start. What a Democratic legacy. Mark Warner is indeed “one of that small group of americans (sic)”. Point well taken.
    .
    re your comment on Warner and Harvard. Does it really make you feel better that he is making law rather than practicing it? Seems he’s in a position to do far more damage where he is.

    • orionATL says:

      the harvard law comment is one i make here repeatedly as a semi-comical observation on status vs competence.

      i have long noted in your comments here your ofted stated devotion to the dem party, but i don’t recall your ever identifying a dem politician local, state, or national whom you admire.

      is there one?

      • lefty665 says:

        Jim Webb, and that was in a response to a recent comment of yours. Elizabeth Warren, Wyden & Udall, Tim Kaine in his better moments, Kucinich, and there are a few others that occasionally stick their heads up. In Virginia, Sens. Creigh Deeds and Donald McEachin, but most of the rest need to go. Amazingly, McAuliffe is standing his ground on health care. Unlikely as it is he’s earning his stripes, I admire that. We’ve got no local elected Dems, but there are several we’ve supported, and will campaign with again.
        .
        Going back, Jimmy Carter of course, McGovern, Eugene McCarthy (my first political contribution), what LBJ accomplished legislatively, JFK, Truman, FDR. Essentially everyone in the Democratic wing of the Democratic Party. The rest of them are taking us to h*ll in a Repub wannabe handbasket.
        .
        Within a few minutes of Gillespie’s nomination this afternoon Warner had a fund raising email out with the news and hustling for money. You seem such a fan I’ll forward it so you can contribute if you’d like.

    • lefty665 says:

      Duh, I left out John Lewis and many, but by no means all, of the Congressional black caucus. Al Sharpton has been surprisingly inspirational in the last several years.
      .
      A last thought. Compromise with evil yields just the illusion of progress. Evil takes what you give it then comes back for more. Krugman, I believe, ca 2002. Certainly describes most of the Dems for the last 20 years, and “radical centrists” in particular.

  7. GKJames says:

    Warner is posturing. When it comes to voting on legislation, he’ll do what he’s always done. Keep in mind that he’s up for re-election in November. He has to make at least some noise in the direction of his less conservative constituents in Northern Virginia. Committee hearings are the perfect vehicle for doing that.

  8. OldFatGuy says:

    I just want to add, as a lifelong Virginia resident who knows Mark Warner all too well, he is no progressive, and very, VERY rarely plays one on TV. He seems to revel in his “centrism” (aka right wingism) and has done so in every election he’s ever run, and has done so in 99% of his acts as governor and votes as Senator.

    Mark Warner is no friend to progressives, and never has been, and never will be.

  9. OldFatGuy says:

    And no my comments await moderation??? Really??

    Because I had the audacity to question the great and wonderful bmaz??? (that was my last interaction here, and prior to that, my comments didn’t warrant moderation).

    Wow, and to think I was actually considering giving here.

  10. OldFatGuy says:

    Oops, nm, maybe I used the wrong email address and that’s why my comments are now being moderated. Treating me like new again.

    • bmaz1 says:

      Yes, I think so, though I am not positive. Sorry, but Marcy was in a seminar most all of the day, and I have been off at court and only on my mobile and I don’t always see comments in moderation on my mobile.

      And, for the record, I was the one who un-moderated your comment. No, you haven’t been modded for messing with me.

Comments are closed.