Why NSA Can’t Count How Many Americans’ Cell Location They Collect

As bmaz noted, WaPo reported today that NSA has been collecting billions of phone records a day, including cell location information. Once again, when the NSA says it has stopped or doesn’t conduct a practice, it means only it has stopped the practice in the US, even though it still collects US person data overseas.

But the NSA refuses to reveal how many Americans’ data are being swept up.

The number of Americans whose locations are tracked as part of the NSA’s collection of data overseas is impossible to determine from the Snowden documents alone, and senior intelligence officials declined to offer an estimate.

“It’s awkward for us to try to provide any specific numbers,” one intelligence official said in a telephone interview. An NSA spokeswoman who took part in the call cut in to say the agency has no way to calculate such a figure.

An intelligence lawyer, speaking with his agency’s permission, said location data are obtained by methods “tuned to be looking outside the United States,” a formulation he repeated three times. When U.S. cellphone data are collected, he said, the data are not covered by the Fourth Amendment, which protects Americans against unreasonable searches and seizures.

A number of tech people are wondering if there’s some secret technical reason why NSA can’t or won’t estimate the number.

But the reason is almost certainly far more cynical.

In 2010 (sometime between July and October), John Bates told the NSA if they knew they were collecting content of US persons, they were illegally wiretapping them. But if they didn’t know, then they weren’t in violation.

When it is not known, and there is no reason to know, that a piece of information was acquired through electronic surveillance that was not authorized by the Court’s prior orders, the information is not subject to the criminal prohibition in Section 1809(a)(2). Of course, government officials may not avoid the strictures of Section 1809(a)(2) by cultivating a state of deliberate ignorance when reasonable inquiry would likely establish that information was indeed obtained through unauthorized electronic surveillance.

Then in 2011, Bates made them count some of their collection of US person content (he deemed it intentional collection, though they and their Congressional overseers still like to claim, legal opinion notwithstanding, it was not; the use of “tuned to be looking outside the US” is probably more of the same). And using the threat of labeling that US person content, he forced them to purge the information. But they somehow refused to count the larger amount of US person data collected intentionally, and NSA was permitted to keep that.

Presumably, the laws would be different on overseas collection, which would not count as “electronic surveillance.” Except that with Section 703 of FISA — which requires an order for collection on US person content overseas — there may be similar levels of protection, just via different statutes.

One thing the NSA has learned through experience with John Bates and FISC is that if you claim you don’t know you’ve collected US person data, a judge will not declare it legal. But if you admit you’ve collected US person data, then that same judge may threaten you with sanctions or force you to purge your data.

So there’s a very good reason why it’s “awkward” for NSA “to try to provide any specific numbers.” Doing so would probably make the collection illegal.

12 replies
  1. Don Bacon says:

    from the Stripes today — the general is worried:

    Chairman of the Joint Chiefs of Staff Gen. Martin Dempsey worried aloud Wednesday that the next generation of possible military recruits is ignorant about the damage that can come from showing bad or illegal behavior online.

    “I worry a bit about … the young men and women who are now in their teens, early teens, and who probably underestimate the impact of their persona in social media and what impact that could have later in life on things like security clearances and promotions” and so on, he told a conference in Washington.

    He said military officials have been considering the idea of giving people a “second start. In other words … say to young men and women, `You know what, you probably exposed some things in your social media persona … Twitter or Facebook … that would disqualify you, actually, from service. But we’re going to give you a shot at starting over … if you agree from this point forward to live to the set of values that we describe.”

  2. Don Bacon says:

    @Don Bacon:

    So any future applicant for any government job at any level may have to explain why she used twitter or facebook to express values unapproved by the government, when she was thirteen or so. But if she confesses and promises the Ministry of Truth that she will change, then everything will be good. (Until the next time.)

  3. Don Bacon says:

    @Don Bacon:

    Nineteen Eighty-Four is a dystopian novel by the English writer George Orwell, published in 1948. The story, which focuses on the life of Winston Smith, was Orwell’s vision of a totalitarian state which has absolute control over every action and thought of its people through propaganda, secrecy, constant surveillance, and harsh punishment.

  4. Snoopdido says:

    I noticed from your twitter conversation with Matt Blaze (https://twitter.com/emptywheel/status/408430950117175296) a discussion that includes his thoughts on signal-to-noise ratio:

    “Well, I’d suspect the S/N ratio is a lot better for phone metadata.”

    I’m no expert, but it would seem to me that “cell-phone” metadata might instead be more extremely noisy in comparison to that of net metadata.

    Consider the collection of the metadata from hundreds of millions of cell-phone with their constant pinging of cell-phone towers with locational information. I don’t know what the pinging interval is, but I wouldn’t be surprised if it was far more numerous (magnitudes more?) than a user’s webpage refreshes or email actions.

  5. ess emm says:

    Once again, when the NSA says it has stopped or doesn’t conduct a practice, it means only it has stopped the practice in the US, even though it still collects US person data overseas.

    How about that, the lying liar that is Keith Alexander is lying again. Yeezus.

  6. William Ockham says:

    The answer to the question of what percentage of U.S, location data is being collected “incidentally” is fairly simple. It is more than 90% and less than 100%. That has to be true based on the description of how they collect and use the information. The telecoms have no incentive to filter the data they share. It is cheaper to send it all and let the receiving company filter it down to their own subscribers. You can’t get the foreign information without getting almost all the U.S. info.

  7. bloodypitchfork says:

    @Don Bacon: quote:”…Orwell’s vision of a totalitarian state which has absolute control over every action and thought of its people through propaganda, secrecy, constant surveillance, and harsh punishment. “unquote

    Youbetcha, harsh punishment..the part average America can’t perceive ever happening here, when in reality, the PTB have already prepared the facilities whereby it will be delivered..as soon as gun confiscation and martial law take effect. The surveillance part will have already occurred to retroactively prove your guilt of crimes to which new laws will be applied, torture notwithstanding. Of course, German citizens couldn’t perceive it either prior to 1933 or thereabouts..that is..until their guns were confiscated. If you think it can’t happen…try this on for size…


    yesireebob. And then you have NYC…


    Incremental is a massive understatement…and here is how they will do it.


    The party collectivists wait till only TEN members are present, suspend the “rules” and call for a vote whereby 10 Congress critters create law.

    whudda thunk.

    And I bet you thought we had representative governance, right? See for yourself….


  8. Don Bacon says:

    news report
    At a meeting with youth on Wednesday to promote his landmark healthcare law, Obama said he is not allowed to have Apple’s smart phone, the iPhone, for “security reasons,” though he still uses Apple’s tablet computer, the iPad.

  9. jerryy says:

    Perhaps the NSA cannot count how many Americans’ cell locations they collect because they lack the ability to count that high….

    I submit for your consideration…

    1) You have heard about the recent international test scores showing US students are falling further behind?


    ” In short, the tests showed U.S. fourth-graders performing poorly, middle school students worse. and high school students are unable to compete.”

    2) This leads to problems down the road:


    “Only about a third of the IT workforce has an IT-related college degree.
    “36 percent of IT workers do not hold a college degree at all.
    “Only 24 percent of IT workers have a four-year computer science or math degree.

    So maybe the spooks are having trouble using the spywares they bought. :^)

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