On the Day Ron Wyden Asked Whether NSA Complied with US v. Jones, It Collected 4 Billion Cell Location Records

FasciaAs part of my new focus on leaked claims that the NSA can’t collect call call data because of problems stripping out cell location data, I want to look at the two exchanges Ron Wyden and James Clapper have had about cell location data.

First, at the Global Threats Hearing 2 years ago just after the US v. Jones decision ruled GPS tracking a search (watching Ron Wyden discomfit Clapper at Threat Hearings used to be my exclusive beat, you know), they had this exchange.

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. [my emphasis]

We now have proof (as if Wyden’s hints weren’t enough of a tell, given his track record) that NSA was collecting cell location at the time of Wyden’s question. While the exchange took place after (according to NSA’s public claims) NSA’s domestic experiments with cell data under Section 215 ended, it suggests the actual NSA collection took place outside of Section 215.

As it happens, NSA’s own slide shows that on the day Wyden asked the question — January 31, 2012 — it collected around 4 billion cell location records (it was a slow day that day — NSA had been collecting closer to 5 billion records a day in 2012). That collection presumably would have been conducted under EO 12333.

Given that we know NSA collected around 4 billion cell location records that day, I’m particularly struck by Clapper’s emphasis on two things: First his suggestion that the legal analysis might be different for an intelligence use than for a law enforcement use. Given his claim the IC abided by the Fourth Amendment, I assume he imagines they have a Special Need to suck up all this cell location data that makes such searches “reasonable.”

Also note his reference to “foreign or domestic.” I’m guessing the IC was also busy arguing that, in spite of the US person cell locations they were ingesting, because they were doing so in a foreign location, it didn’t violate the Fourth Amendment.

With all that in mind, consider Wyden’s question to Keith Alexander on September 26, just before Alexander admitted to the past Section 215 experiments as some kind of limited hangout.

Wyden: Senators Udall, Heinrich and I and about two dozen other senators have asked in the past whether the NSA has ever collected or made any plans to collect Americans’ cell-site information in bulk. What would be your response to that?

Gen. Keith Alexander: Senator, on July 25, Director Clapper provided a non-classified written response to this question amongst others, as well as a classified supplement with additional detail. Allow me to reaffirm what was stated in that unclassified response. Under section 215, NSA is not receiving cell-site location data and has no current plans to do so. As you know, I indicated to this committee on October 20, 2011, that I would notify Congress of NSA’s intent to obtain cell-site location data prior to any such plans being put in place. As you may also be aware, –

Wyden: General, if I might. I think we’re all familiar with it. That’s not the question I’m asking. Respectfully, I’m asking, has the NSA ever collected or ever made any plans to collect Americans’ cell-site information. That was the question and we, respectfully General, have still not gotten an answer to it. Could you give me an answer to that? [my emphasis]

Alexander stated publicly that they were not then and had no plans to obtain cell location data under Section 215. Wyden’s response — noting that Alexander’s Section 215 response didn’t answer their question at all — was a tell. NSA was collecting this data under a different authority, EO 12333.

Given this very recent history, I’d suggest assuming the Administration isn’t conducting a similar limited hangout on cell data generally is naive.

One more point. When the WaPo revealed that (among other things) NSA collected 4 billion cell location records on the day Wyden and Clapper ahd that exchange, Robert Litt gave a new denial.

Robert Litt, general counsel for the Office of the Director of National Intelligence, which oversees the NSA, said “there is no element of the intelligence community that under any authority is intentionally collecting bulk cellphone location information about cellphones in the United States.”

His statement could mean two things:

  1. No element of the IC is intentionally collecting, from collection points in the US, bulk cellphone location on US cellphones
  2. No element of the IC is intentionally collecting, from collection points anywhere in the world, bulk data on cellphones located in the US

Given the two years of word games we’ve gotten, I’m going to assume this is another one.

10 replies
  1. ron walker says:

    Couldn’t be possible that the aim of this “collection” effort is not to catch or prevent terrorist actions but rather to track and influence the public opinion in the US ?

    After all NSA was unable to prevent both the Times Square and the Boston Marathon incidents. Even though in both there were plentiful indicators from human sources (parents and the Russian Itel service), foreign travel, and phone data.

    Mr. Clapper also can’t keep his terror plots straight – was it 40 or 50 or 60 ?

    Notice that intercepts were used in drug traffic stops but not money laundering.

    Stopping terror or keeping the populace quiet and asleep.

  2. lefty665 says:

    There was opinion before 9/11 that NSA was getting all cell phone traffic. Some collection authority was found in the old Federal Communications Act proposition that if you don’t want someone to listen, don’t transmit.

    Is it naive to ask if some of that logic may still be at work? As in: We don’t need no steenkin’ furrin FISA or EOs, domestic cell traffic is radios, and radio xmitters are covered by the FCA of 1934.

  3. orionATL says:

    @john francis lee:

    senator ron wyden has been utterly remarkable in the patient, self-controlled, extremely persistent, multi-year way he has battled chairwoman feinstein’s and the nsa’s spying generals’ lies and misrepresentations about the extent and nature of the nsa’s mammoth invasion of american citizens’ rights to privacy.

    the american public and the u.s. senate do not have a more caring champion of individual citizens’ constitutional rights than senator ron wayden.

  4. Nigel says:

    Yet more firm legal evidence that no reliance can be put on anything Clapper – or Holder – has to say:

    Instead of admitting to the error, high-ranking President Barack Obama administration officials spent years covering it up. Attorney General Eric Holder, Director of National Intelligence James Clapper, and a litany of other government officials claimed repeatedly that disclosing the reason Ibrahim was detained, or even acknowledging that she’d been placed on a watch list, would cause serious damage to the U.S. national security. Again and again they asserted the so-called “state secrets privilege” to block the 48-year-old woman’s lawsuit, which sought only to clear her name.

  5. lefty665 says:

    @john francis lee: Chambliss and Rockefeller are retiring. The rightwing dingbats are squabbling to see who gets to replace Chambliss. How would you like “Senator Herman Cain”, or a Palin backed Senator? The Dems are going to have to find a “pro coal” candidate if they want to hang onto Rockefeller’s seat.

    Most anywhere but Virginia Warner would be a Repub. He’s running against Ed Gillespie, who’s bright. That is going to be a race. I really hate voting “lesser evil” crap, and Warner votes right wing, blue dog, fat cat, crap. But otoh, the idea of Repubs gaining enough seats to flip the Senate and run both houses of Congress is scary.

    More than 90% of House districts are gerrymandered safe for the incumbent. The chances of changing that chamber for the better are slim and slimmer.

    I like your thought, but it ain’t going to happen. The odds are that we’ll get change for the worse.

  6. JTMinIA says:

    There’s a third interpretation of the Litt quote, one that prevents Litt from being guilty of lying to Congress: the NSA *is* intentionally collecting bulk cellphone location information about cellphones in the United States, but is doing so without any authority.

  7. LeMoyne says:

    @JTMinIA: I like your no specific authority idea – it aligns with the FCA idea above.

    Perhaps they are using “intentional” as their wiggle word, as in: We asked the phone companies for the call metadata and they just dumped all their system metadata on poor us – we didn’t mean to get the location data embedded in the system control data.

  8. john francis lee says:

    Ron Wyden may have been ” patient, self-controlled, extremely persistent, [in the] multi-year way he has battled chairwoman feinstein’s and the nsa’s spying generals’ lies “, but the missing, operative phrase is utterly ineffective.

    Mike Gravel read the Pentagon Papers into the Congressional record. Wyden … any of them … don’t even have to think … just do what’s been done and shown to be effective.

    Replacing a republicrat with a demoblican is making a distinction without a difference.

    There are more than 300,000,000 of us Americans and I’d hazard a guess that there are among us at least 1,000,000 who would be more effective than any of the 535 + 2 criminals we now have ‘representing’ us.

    And they are criminals because they are members of the demoblican and republicrat crime families.

    If we want change we have to change things. I know that runs counter to the accepted wisdom.

    The 535 + 2 have a track record and that track record is ‘unimpeachable’ grounds for immediate dismissal.

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