The Government Wants You To Forget It Will Still Collect Your Phone Records in Bulk

I Con the Record released two statements to mark the end of the Section 215 phone dragnet (which will take place at midnight tomorrow night): a statement and a “fact” sheet. They’re a curious mix of true statements, false statements, and probably false statements.

Here’s the true statement that USAF boosters aren’t retweeting (but which Jim Comey recently mentioned in congressional testimony):

Moreover, the overall volume of call detail records subject to query pursuant to court order is greater under USA FREEDOM Act.

Right now, the Section 215 phone dragnet is not getting some cell records, probably not getting all VOIP, and probably not getting non-telephony messaging. Even just the cell records creates holes in the dragnet, and to the extent it doesn’t collect Internet based calls and messaging, those holes would be especially problematic.

Which is why I’m struck by this language.

adopted the new legal mechanism proposed by the President regarding the targeted production of telephony metadata

[snip]

With respect to the new mechanism for the targeted production of telephony metadata,

[snip]

When will NSA implement the new, selected telephony metadata process required by the USA FREEDOM Act?

As I’ve noted, USA Freedom Act is technology neutral — the language of the law itself would permit collection of these other kinds of metadata. And while the House report says it applies to “phone companies,” it would be hard to argue that the maker of the most popular phone handset, Apple, is not a phone company, or handset/software manufacturers Google or Microsoft. So I suspect this is technically inaccurate.

Then there’s the deliberately misleading language, which is most notable in these passages but appears throughout.

On November 29, the transition period ends. Beginning Sunday, November 29, the government is prohibited from collecting telephone metadata records in bulk under Section 215, including of both U.S. and non-U.S. persons.

[snip]

That approach was enshrined in the USA FREEDOM Act of 2015, which directs that the United States Government will no longer collect telephony metadata records in bulk under Section 215 of the USA PATRIOT Act, including records of both U.S. and non-U.S. persons.

I’m sure the government would like terrorists and the  press to believe that it “will no longer collect telephony metadata records in bulk … including records of both U.S. and non-U.S. persons.” In which case, this construction should be regarded as a huge success, because some in the press are reporting that the phone dragnet will shut down tomorrow night.

False.

Just a tiny corner of the phone dragnet will shut down, and the government will continue to collect “telephony metadata records in bulk … including records of both U.S. and non-U.S. persons” under EO 12333. Hypothetically, for every single international call that had been picked up under the Section 215 dragnet and more (at a minimum, because NSA collects phone records overseas with location information), a matching record has been and will continue to be collected overseas, under EO 12333.

They’re still collecting your phone records in bulk, not to mention collecting a great deal of your Internet records in bulk as well. BREAKING.

There’s one more misleading passage.

The legal framework permits providers to return call detail records which are either one or two “hops” away from a FISC-approved, terrorist-associated selection term. First hop selection terms (e.g., those that are in direct contact with a FISC-approved selection term) may be obtained from providers as well as from information identified independently by the government. These first hop selection terms may then be sent by NSA as query requests to the providers to obtain second hop records.

I Con the Record offers “those [call detail records] that are in direct contact with a FISC-approved, terrorist approved selection term” as an example of what it gets at each hop. But the language no longer requires that a “contact” be made — only that a connection be made. So it’s quite possible NSA will collect call detail records (which only need be a session identifier, so it doesn’t require any call actually be placed) of people who have never technically “contacted” the target.

There’s a reason they call this “I Con the Record,” you know.

 

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. haarmeyer says:

    I doubt highly that the NSA has any reason to subvert the current format. They get to pretend they don’t have the same reach they used to have, the phone companies get the blame if there is over-collection of metadata and data, and the arrangements have been made for the requests to be satisfied near-on-demand, which is all the faster their own storage structures could do it anyway.

    For their part, the phone companies have greatly increased their real power with this move, and have obtained some justification for new metadata and new intrusiveness into the content they process.

    It’s a win-win for both parties and a loss for the public all around, why would they burrow underground and try to subvert it? The lesson to be learned on all of this by the public is that concentrating all of your ire and attention on the government while corporations are allowed, even encouraged, to walk away with your freedoms is not a recipe for social justice.

    The notion that Apple and Google are leading a charge for privacy because they cynically offer “end-to-end encryption” that stirs the pot and can be marketed to their advantage is particularly sickening when observed from within the tech community in Silicon Valley. It really isn’t true that there is no solution to the very much technical problem of being able to serve a warrant on data while simultaneously protecting data from unwarranted or illegal intrusion. It really isn’t true that the only way to surveil the internet and not miss anything is to collect and store everything. It really isn’t true that the path forward in technology and society is the only one available and that the invisible hand is guiding it to the the best of all possible worlds (apologies, Voltaire).

    What’s usually the case is the problem can’t be solved in a way that keeps the current companies at the top of the charts, keeps the current academic “experts” at the top of their fields, and keeps the current venture capitalists on top of all risks.

    What is true is that as long as the debates get framed in too-simple terms, nothing substantial will really change. If the status quo is to your benefit, you win. Otherwise, you don’t.

  2. P/K says:

    The statement says “metadata records in bulk under Section 215” – so it’s about the bulk collection under that specific authority which has ended. They don’t say bulk collection in general has ended, so I don’t see that as misleading.

    • emptywheel says:

      That’s funny. Because every reporter who worked off this statement implied that all bulk collection was ending. Every one, save one person I got to first and one person who revised after talking to me.

      Apparently it misled a lot of people paid to know better.

  3. klynn says:

    Great, insightful digging in this post EW…Sorry I am away so much…Very ill child at home so I am in caregiving mode. Hope you had a great T-day.

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