Robert Mueller’s Claims to Be Ignorant about Geolocation Probably Bullshit
As I laid out in this Guardian column on today’s House Judiciary Committee hearing, after citing Smith v. Maryland a bunch of times to justify getting all Americans’ phone records, FBI Director Robert Mueller went on to pretend not to know whether those records include geolocation.
New York Representative Jerry Nadler wasn’t convinced Mueller’s excuse was good enough. He noted that metadata includes so much more information than it did in 1979, and that that earlier ruling might not stand in this case. Utah’s Jason Chaffetz got much more specific about the difference between phones in 1979 and now: location.
Landlines include location information. But with cell phones, the same location information necessary to route a call effectively provides a rough idea of where a person is even as they move from place to place (map functions on smart phones, as well as a lot of applications, rely on this data). Thus, the geolocation available as part of cell phone metadata provides a much better idea of where a person goes and what they do than location data for a landline tied to a person’s address.
Chaffetz posed several questions that, he revealed, he had sent Mueller Wednesday so that he would be prepared to answer, starting with whether or not geolocation is part of this metadata collection. In spite of Chaffetz’s prior warning, Mueller said he did not know whether it was included.
Note that the order to Verizon the Guardian publishedspecifically includes routing information in its description of metadata, which gets to geolocation. It’s clear this collection includes geolocation.
Mueller was also unprepared to answer whether or not a different supreme court case from last year, US v Jones, which determined that installing a GPS tracking device on a suspect’s car constituted a search, meant that the geolocation provided by the GPS function on cell phones did not qualify as metadata. Mueller was also unprepared to answer whether tracking someone’s location by using their phone constituted metadata.
In fact, Mueller admitted his staffers had told him he’d be asked these questions – yet still hadn’t prepared. It seemed almost as if his inability to answer this question in public was intentional.
As I suggested, Mueller’s feigned ignorance was probably intentional.
Moreover, his professed ignorance about whether the phone records include location is probably bullshit. That’s true, as I noted, because the order in question includes routing information, which in the case of cell phones, includes tower location which is location.
And remember, according to Tom Coburn, the FBI Director’s role in approving this process is so central, Coburn was worried that legal challenges to Mueller’s two-year extension might put the entire dragnet program at risk. So it’s hard to believe all this time Mueller has been personally vouching for orders like the one to Verizon that ask explicitly for routing information without knowing he was asking for routing information.
Here’s the other reason I think Mueller is telling a least untruth that is too cute by half when he claims ignorance.
Shortly after the US v. Jones ruling, Ron Wyden asked Director of National Intelligence James Clapper to what degree Jones affected the intelligence community. He even invoked “secret law,” the way he always has done when referring to this dragnet program(s).
Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.
Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment.
Clapper’s invocation of the Fourth Amendment is similar to what Mueller did all day today, to repeat that metadata was not covered by the Fourth Amendment.
But he also makes it clear the intelligence community (of which the FBI is one member)’s lawyers were reviewing the issue.
I find it implausible (to say the least) that FBI’s General Counsel Andrew Weissmann wasn’t personally involved in this, particularly since he, as well as Solicitor General Don Verrilli, was quoted in this piece post-Jones. And if FBI was involved in that process, then it seems pretty certain that Mueller was too.
If I’m right that this is all BS, the question is what precisely his feigned ignorance covers up.
“Feigned” ignorance is being kind. Lied about not knowing seems much more probable. His lying to Congress, while not original, would be a felony.
Geolocation – at any point in time, over time, and a phone’s association with other phones and the data attached to them, is essential data for government snoops. Among other things, it’s a primary component in building the “associational networks” that are such hot topics both in government and in the government-funded companies and universities that build the software used to assess, analyze and predict data behavior. As an afterthought, it might also be useful as evidence in establishing criminal conduct. That is, were it not that the government would withhold such information from the courts as a “state secret”, and were it not that the government seems largely to be dispensing with its use of the courts, except as a means to implement its own priorities.
Mr. Mueller again proves that, as was true of Communist China and Soviet Russia, the essential proof of a fact is established once the government officially denies it.
The law, as is common, seems to be behind the curve here. The Fourth Amendment may have been held not to include “metadata” when it originally was limited to such things as the telephone number for a landline and the name and address associated with its billing information. It also included numbers called where these were traceable, which excluded local calls not separately itemized and billed.
Metadata now includes considerable more data. Most importantly, it includes location data for cell phones, a set of data developed at government insistence after 9/11, when it required that newly manufactured cell phones incorporate GPS chips. Most users keep their phone on and with them wherever they go, 24/7. Consequently, location data yields a goldmine of movement information that is far more invasive of one’s privacy than would result from disclosing the text of a call or text message.
In addition, new software has automated the formerly laborious task of triangulating a mobile phone’s location within a cell, giving the government two bites at the where’s Waldo’s phone apple. Also by government fiat, cellular phone applications require name, address and dob information, from which such things as Social Security information could be obtained, as well as torrents of information collected by data aggregators the government routinely uses.
Metadata also includes call times and duration for each cellular phone call, unique identifiers for the calling and receiving phones, and other data. Examples include for, say, a google-based smartphone, one or more e-mail accounts, web searches, calendar info., call lists, data strings for text messages, and so on. All that captures a presumably wider set of relationship data than phone call data.
As other commentators have observed, if given a choice between a verbatim text of a call or text message and all metadata associated with a phone or other mobile device, the government would choose the metadata.
Mr. Mueller’s biggest whopper may have been his headline claim that the illegal data snooping the government is now doing could have prevented 9/11. As with an industrial food box that claims its contents are new, improved and ultra-, ultra-healthy, raising the ghost of 9/11 tells us we’re in fact-free propaganda zone.
Important data that was in hand before 9/11, for example, was ignored. Stove-piping was the rule. There wasn’t the experiential data then we have now, nor did the government have the software or data sets. It still doesn’t have the ability to use them consistently or properly. And it’s unlikely that the costs of this digital hoovering of everyday information bear any relationship to the benefit of reducing terrorism before the fact, let alone to reducing the most damaging of crimes (many of which are committed by businesses deemed too important to politicians to challenge).
Mueller ignores systemic and human failures in his appeal to the ghosts of 9/11. His is another ploy to excuse rampant illegal behavior on the premise that somehow, somewhere, that illegal behavior might keep someone safer than she would be were the government not wasting tens or hundreds of billions of dollars in its attempts to micro-analyze (and, hence, micro-manage) its and the world’s citizens.
More data yields less analysis and more mistakes, not greater knowledge. As with last century’s bomb, the data snooping industry is becoming its own always hungry leviathan. Wrapped in its coils, we will not be more secure.
his headline claim that the illegal data snooping the government is now doing could have prevented 9/11
Conveniently ignoring the fact that the FBI missed several opportunities to shut the entire 9/11 plot down, by ignoring warnings from its own agents.
It’s tempting to think that money is at the root of this evil, contractor dough and lots of it, rather than a credible desire to keep us safe with measures that would remotely bear up under the simplest of cost-benefit analyses. So much for the “rational actor” that underlies modern economics and, hence, modern politics. (Oops, forgot that there is no connection, none at all, between the natural laws of economics and namby pampy philosophy or real world politics.)
@earlofhuntingdon:
The ‘rational actor’ of modern economics is a mythological beast. You’re probably more likely to see sparkly unicorns.
@P J Evans:
The most unforgiveable thing mueller was reported to have said was that the current nsa spying programs could have prevented the attack on the wtc in sept 2001.
That attack could have been prevented alright – easily, readily prevented – if mid-level fbi managers had gone to the fisa court and allowed fbi agents in minnesota and phoenix, who were screaming for permission, to intertogate, follow, investigate, wiretap saudi would-become-bombers who were training as pilots of commercial jets.
@earlofhuntingdon:
Out of admiration in general for your fine comments, i repeat what i said just above in response to pj evans as my response to your comment:
The most unforgiveable thing mueller was reported to have said was that the current nsa spying programs could have prevented the attack on the wtc in sept 2001.
That attack could have been prevented alright – easily, readily prevented – if mid-level fbi managers had gone to the fisa court and allowed fbi agents in minnesota and phoenix, who were screaming for permission, to intertogate, follow, investigate, wiretap saudi would-become-bombers who were training as pilots of commercial jets.
Thank you for those insights.
@orionATL:
That’s exactly what I was thinking of. Mueller lies like an old carpet: beaten up, wrinkled, and full of holes.
Loos like Mueller doesn’t watch much TV. NCIS does this kind of tracking every week – on TV at least.
@earlofhuntingdon:
“Most importantly, it includes location data for cell phones, a set of data developed at government insistence after 9/11, when it required that newly manufactured cell phones incorporate GPS chips.”
That’s not quite right. The E911 program was underway at the FCC in the late 1990s, with a purely (opinion) public safety motivation. A 911 call from a mobile user couldn’t be correlated to a stored address for that phone number. This FCC fact sheet asserts that they started developing E911 in 1996:
http://transition.fcc.gov/pshs/services/911-services/enhanced911/archives/factsheet_requirements_012001.pdf
Mobile phone location can be determined in a variety of ways, only one of which involves GPS. Here’s a summary by Motorola of a large number of possible methods as of 1999:
http://transition.fcc.gov/pshs/services/911-services/enhanced911/archives/mottutorial.pdf
One of the reasons for allowing non-GPS methods was the cost of adding GPS functionality in the late 1990s, which ranged from perhaps $5 to $20 per handset. The cost of adding GPS functionality to a mobile device dropped to under $2 several years ago, and is probably hovering around $1 per handset today. In many cases a GPS-equipped handset may not be autonomous. It may require some aiding data (A-GPS) from the network, allowing the service provider to add monthly fees for that service.
In any event, there is no requirement to include GPS functionality in every mobile phone. And although you might be able to turn off GPS in your handset, you can’t turn off the other methods.
@omphaloscepsis: I believe everything posted at the official FCC and Motorola websites. It’s rather like believing the FCC’s conclusions that the several giant mobile telecoms mergers of about 2005 were in the public’s interests.
In the case of mobile phone location technology, the usual explanation for inaccurate or incomplete disclosure of such things as GPS functionality is a complete denial or that lying is excused for reasons of “national security”.
It’s also possible you’re confusing consumer-accessible GPS functionality, which can be an extra-cost feature to the consumer, with telecom and government-accessible GPS functionality. A similar argument could be made about the approaching ubiquity of automobile-based GPS systems, and engine management systems that record gobs of information, including vehicle location information, inaccessible to the vehicle owner.
Borrowing the nautical term that the 911 program was “underway”, which would literally mean that it was moving faster than the prevailing current, says nothing about distance or direction traveled or the reason for travel. GPS-tied mobile phones came into widespread use only after 911 and only after government insistence. No tie, of course, to approval for those mega-mergers under BushCheney, and no tie to the once illegal post-9/11 massive disclosure of telecoms info to the government (that is, illegal until Congress happily handed the government and the telecoms their get-out-of-jail free cards).
@omphaloscepsis: I believe everything posted at the official FCC and Motorola websites. It’s rather like believing the FCC’s conclusions that the several giant mobile telecoms mergers of about 2005 were in the public’s interests.
In the case of mobile phone location technology, the usual explanation for inaccurate or incomplete disclosure of such things as GPS functionality is a complete denial or that lying is excused for reasons of “national security”.
It’s also possible you’re confusing consumer-accessible GPS functionality, which can be an extra-cost feature to the consumer, with telecom and government-accessible GPS functionality. A similar argument could be made about the approaching ubiquity of automobile-based GPS systems, and engine management systems that record gobs of information, including vehicle location information, inaccessible to the vehicle owner.
Borrowing the nautical term that the 911 program was “underway”, which would literally mean that it was moving faster than the prevailing current, says nothing about distance or direction traveled or the reason for travel. GPS-tied mobile phones came into widespread use only after 911 and only after government insistence. No tie, of course, to approval for those mega-mergers under BushCheney, and no tie to the once illegal post-9/11 massive disclosure of telecoms info to the government (that is, illegal until Congress happily handed the government and the telecoms their get-out-of-jail free cards).