Nettime — NSA's Domestic Spying Grows As Agency Sweeps Up Data

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This article posted on Nettime originally from the Wall Street Journal of all places -rg
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NSA’s Domestic Spying Grows As Agency Sweeps Up Data
Terror Fight Blurs Line Over Domain; Tracking Email
March 10, 2008
WASHINGTON, D.C. — Five years ago, Congress killed an experimental
Pentagon antiterrorism program meant to vacuum up electronic data
about people in the U.S. to search for suspicious patterns. Opponents
called it too broad an intrusion on Americans’ privacy, even after the
Sept. 11 terrorist attacks.
But the data-sifting effort didn’t disappear. The National Security
Agency, once confined to foreign surveillance, has been building
essentially the same system.
The central role the NSA has come to occupy in domestic intelligence
gathering has never been publicly disclosed. But an inquiry reveals
that its efforts have evolved to reach more broadly into data about
people’s communications, travel and finances in the U.S. than the
domestic surveillance programs brought to light since the 2001
terrorist attacks.
Congress now is hotly debating domestic spying powers under the main
law governing U.S. surveillance aimed at foreign threats. An expansion
of those powers expired last month and awaits renewal, which could be
voted on in the House of Representatives this week. The biggest point
of contention over the law, the Foreign Intelligence Surveillance
Act, is whether telecommunications and other companies should be made
immune from liability for assisting government surveillance.
Largely missing from the public discussion is the role of the highly
secretive NSA in analyzing that data, collected through little-known
arrangements that can blur the lines between domestic and foreign
intelligence gathering. Supporters say the NSA is serving as a key
bulwark against foreign terrorists and that it would be reckless
to constrain the agency’s mission. The NSA says it is scrupulously
following all applicable laws and that it keeps Congress fully
informed of its activities.
According to current and former intelligence officials, the spy agency
now monitors huge volumes of records of domestic emails and Internet
searches as well as bank transfers, credit-card transactions, travel
and telephone records. The NSA receives this so-called “transactional”
data from other agencies or private companies, and its sophisticated
software programs analyze the various transactions for suspicious
patterns. Then they spit out leads to be explored by counterterrorism
programs across the U.S. government, such as the NSA’s own Terrorist
Surveillance Program, formed to intercept phone calls and emails
between the U.S. and overseas without a judge’s approval when a link
to al Qaeda is suspected.
The NSA’s enterprise involves a cluster of powerful
intelligence-gathering programs, all of which sparked civil-liberties
complaints when they came to light. They include a Federal Bureau of
Investigation program to track telecommunications data once known
as Carnivore, now called the Digital Collection System, and a U.S.
arrangement with the world’s main international banking clearinghouse
to track money movements.
The effort also ties into data from an ad-hoc collection of so-called
“black programs” whose existence is undisclosed, the current and
former officials say. Many of the programs in various agencies began
years before the 9/11 attacks but have since been given greater
reach. Among them, current and former intelligence officials say,
is a longstanding Treasury Department program to collect individual
financial data including wire transfers and credit-card transactions.
It isn’t clear how many of the different kinds of data are combined
and analyzed together in one database by the NSA. An intelligence
official said the agency’s work links to about a dozen antiterror
programs in all.
A number of NSA employees have expressed concerns that the agency may
be overstepping its authority by veering into domestic surveillance.
And the constitutional question of whether the government can examine
such a large array of information without violating an individual’s
reasonable expectation of privacy “has never really been resolved,”
said Suzanne Spaulding, a national-security lawyer who has worked for
both parties on Capitol Hill.
NSA officials say the agency’s own investigations remain focused only
on foreign threats, but it’s increasingly difficult to distinguish
between domestic and international communications in a digital era, so
they need to sweep up more information.
The Fourth Amendment
In response to the Sept. 11 attacks, then NSA-chief Gen. Michael
Hayden has said he used his authority to expand the NSA’s capabilities
under a 1981 executive order governing the agency. Another
presidential order issued shortly after the attacks, the text of
which is classified, opened the door for the NSA to incorporate more
domestic data in its searches, one senior intelligence official said.
The NSA “strictly follows laws and regulations designed to preserve
every American’s privacy rights under the Fourth Amendment to the
U.S. Constitution,” agency spokeswoman Judith Emmel said in a
statement, referring to the protection against unreasonable searches
and seizures. The Office of the Director of National Intelligence,
which oversees the NSA in conjunction with the Pentagon, added in a
statement that intelligence agencies operate “within an extensive
legal and policy framework” and inform Congress of their activities
“as required by the law.” It pointed out that the 9/11 Commission
recommended in 2004 that intelligence agencies analyze “all relevant
sources of information” and share their databases.
Two former officials familiar with the data-sifting efforts said
they work by starting with some sort of lead, like a phone number or
Internet address. In partnership with the FBI, the systems then can
track all domestic and foreign transactions of people associated with
that item — and then the people who associated with them, and so on,
casting a gradually wider net. An intelligence official described
more of a rapid-response effect: If a person suspected of terrorist
connections is believed to be in a U.S. city — for instance, Detroit,
a community with a high concentration of Muslim Americans — the
government’s spy systems may be directed to collect and analyze all
electronic communications into and out of the city.
The haul can include records of phone calls, email headers and
destinations, data on financial transactions and records of Internet
browsing. The system also would collect information about other
people, including those in the U.S., who communicated with people in
The information doesn’t generally include the contents of
conversations or emails. But it can give such transactional
information as a cellphone’s location, whom a person is calling, and
what Web sites he or she is visiting. For an email, the data haul can
include the identities of the sender and recipient and the subject
line, but not the content of the message.
Intelligence agencies have used administrative subpoenas issued by the
FBI — which don’t need a judge’s signature — to collect and analyze
such data, current and former intelligence officials said. If that
data provided “reasonable suspicion” that a person, whether foreign
or from the U.S., was linked to al Qaeda, intelligence officers could
eavesdrop under the NSA’s Terrorist Surveillance Program.
The White House wants to give companies that assist government
surveillance immunity from lawsuits alleging an invasion of privacy,
but Democrats in Congress have been blocking it. The Terrorist
Surveillance Program has spurred 38 lawsuits against companies.
Current and former intelligence officials say telecom companies’
concern comes chiefly because they are giving the government unlimited
access to a copy of the flow of communications, through a network of
switches at U.S. telecommunications hubs that duplicate all the data
running through it. It isn’t clear whether the government or telecom
companies control the switches, but companies process some of the data
for the NSA, the current and former officials say. [Graphic: see URL]
On Friday, the House Energy and Commerce Committee released a letter
warning colleagues to look more deeply into how telecommunications
data are being accessed, citing an allegation by the head of a New
York-based computer security firm that a wireless carrier that hired
him was giving unfettered access to data to an entity called “Quantico
Circuit.” Quantico is a Marine base that houses the FBI Academy;
senior FBI official Anthony DiClemente said the bureau “does not have
‘unfettered access’ to any communication provider’s network.”
The political debate over the telecom information comes as
intelligence agencies seek to change traditional definitions of how
to balance privacy rights against investigative needs. Donald Kerr,
the deputy director of national intelligence, told a conference of
intelligence officials in October that the government needs new
rules. Since many people routinely post details of their lives on
social-networking sites such as MySpace, he said, their identity
shouldn’t need the same protection as in the past. Instead, only their
“essential privacy,” or “what they would wish to protect about their
lives and affairs,” should be veiled, he said, without providing
Social-Network Analysis
The NSA uses its own high-powered version of social-network analysis
to search for possible new patterns and links to terrorism. The
Pentagon’s experimental Total Information Awareness program, later
renamed Terrorism Information Awareness, was an early research effort
on the same concept, designed to bring together and analyze as much
and as many varied kinds of data as possible. Congress eliminated
funding for the program in 2003 before it began operating. But it
permitted some of the research to continue and TIA technology to be
used for foreign surveillance.
Some of it was shifted to the NSA — which also is funded by the
Pentagon — and put in the so-called black budget, where it would
receive less scrutiny and bolster other data-sifting efforts, current
and former intelligence officials said. “When it got taken apart,
it didn’t get thrown away,” says a former top government official
familiar with the TIA program.
Two current officials also said the NSA’s current combination of
programs now largely mirrors the former TIA project. But the NSA
offers less privacy protection. TIA developers researched ways to
limit the use of the system for broad searches of individuals’ data,
such as requiring intelligence officers to get leads from other
sources first. The NSA effort lacks those controls, as well as
controls that it developed in the 1990s for an earlier data-sweeping
Sen. Ron Wyden, an Oregon Democrat and member of the Senate
Intelligence Committee who led the charge to kill TIA, says “the
administration is trying to bring as much of the philosophy of
operation Total Information Awareness as it can into the programs
they’re using today.” The issue has been overshadowed by the fight
over telecoms’ immunity, he said. “There’s not been as much discussion
in the Congress as there ought to be.”
Opportunity for Debate
But Sen. Kit Bond of Missouri, the ranking Republican on the
committee, said by email his committee colleagues have had “ample
opportunity for debate” behind closed doors and that each intelligence
program has specific legal authorization and oversight. He cautioned
against seeing a group of intelligence programs as “a mythical ‘big
brother’ program,” adding, “that’s not what is happening today.” READ
While the Fourth Amendment guarantees “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures,” the legality of data-sweeping relies on the
government’s interpretation of a 1979 Supreme Court ruling allowing
records of phone calls — but not actual conversations — to be collected
without a warrant.
[Read the ruling.1: http://supreme.justia.com/us/442/735/case.html]
The legality of data-sweeping relies largely on the government’s
interpretation of a 1979 Supreme Court ruling allowing records of phone
calls — but not actual conversations — to be collected without a judge
issuing a warrant. Multiple laws require a court order for so-called
“transactional'” records of electronic communications, but the 2001
Patriot Act lowered the standard for such an order in some cases, and in
others made records accessible using FBI administrative subpoenas called
“national security letters.”
[Read the ruling.2 – http://supreme.justia.com/us/442/735/case.html ]
A debate is brewing among legal and technology scholars over
whether there should be privacy protections when a wide variety of
transactional data are brought together to paint what is essentially
a profile of an individual’s behavior. “You know everything I’m
doing, you know what happened, and you haven’t listened to any of the
contents” of the communications, said Susan Landau, co-author of a
book on electronic privacy and a senior engineer at Sun Microsystems
Laboratories. “Transactional information is remarkably revelatory.”
Ms. Spaulding, the national-security lawyer, said it’s “extremely
questionable” to assume Americans don’t have a reasonable expectation
of privacy for data such as the subject-header of an email or a Web
address from an Internet search, because those are more like the
content of a communication than a phone number. “These are questions
that require discussion and debate,” she said. “This is one of the
problems with doing it all in secret.”
Gen. Hayden, the former NSA chief and now Central Intelligence Agency
director, in January 2006 publicly defended the activities of the
Terrorist Surveillance Program after it was disclosed by the New York
Times. He said it was “not a driftnet over Lackawanna or Fremont or
Dearborn, grabbing all communications and then sifting them out.”
Rather, he said, it was carefully targeted at terrorists. However,
some intelligence officials now say the broader NSA effort amounts to
a driftnet. A portion of the activity, the NSA’s access to domestic
phone records, was disclosed by a USA Today article in 2006.
The NSA, which President Truman created in 1952 through a classified
presidential order to be America’s ears abroad, has for decades
been the country’s largest and most secretive intelligence agency.
The order confined NSA spying to “foreign governments,” and during
the Cold War the NSA developed a reputation as the world’s premier
code-breaking operation. But in the 1970s, the NSA and other
intelligence agencies were found to be using their spy tools to
monitor Americans for political purposes. That led to the original
FISA legislation in 1978, which included an explicit ban on the NSA
eavesdropping in the U.S. without a warrant.
Big advances in telecommunications and database technology led to
unprecedented data-collection efforts in the 1990s. One was the
FBI’s Carnivore program, which raised fears when it was in disclosed
in 2000 that it might collect telecommunications information about
law-abiding individuals. But the ground shifted after 9/11. Requests
for analysis of any data that might hint at terrorist activity flooded
from the White House and other agencies into NSA’s Fort Meade, Md.,
headquarters outside Washington, D.C., one former NSA official
recalls. At the time, “We’re scrambling, trying to find any piece of
data we can to find the answers,” the official said.
The 2002 congressional inquiry into the 9/11 attacks criticized the
NSA for holding back information, which NSA officials said they were
doing to protect the privacy of U.S. citizens. “NSA did not want
to be perceived as targeting individuals in the United States” and
considered such surveillance the FBI’s job, the inquiry concluded.
FBI-NSA Projects
The NSA quietly redefined its role. Joint FBI-NSA projects “expanded
exponentially,” said Jack Cloonan, a longtime FBI veteran who
investigated al Qaeda. He pointed to national-security letter
requests: They rose from 8,500 in 2000 to 47,000 in 2005, according
to a Justice Department inspector general’s report last year. It
also said the letters permitted the potentially illegal collection
of thousands of records of people in the U.S. from 2003-05. Last
Wednesday, FBI Director Robert Mueller said the bureau had found
additional instances in 2006.
It isn’t known how many Americans’ data have been swept into the NSA’s
systems. The Treasury, for instance, built its database “to look at
all the world’s financial transactions” and gave the NSA access to
it about 15 years ago, said a former NSA official. The data include
domestic and international money flows between bank accounts and
credit-card information, according to current and former intelligence
The NSA receives from Treasury weekly batches of this data and adds
it to a database at its headquarters. Prior to 9/11, the database was
used to pursue specific leads, but afterward, the effort was expanded
to hunt for suspicious patterns.
Through the Treasury, the NSA also can access the database of the
Society for Worldwide Interbank Financial Telecommunication, or
Swift, the Belgium-based clearinghouse for records of international
transactions between financial institutions, current and former
officials said. The U.S. acknowledged in 2006 that the CIA and
Treasury had access to Swift’s database, but said the NSA’s Terrorism
Surveillance Program was separate and that the NSA provided only
“technical assistance.” A Treasury spokesman said the agency had no
Through the Department of Homeland Security, airline passenger data
also are accessed and analyzed for suspicious patterns, such as five
unrelated people who repeatedly fly together, current and former
intelligence officials said. Homeland Security shares information with
other agencies only “on a limited basis,” spokesman Russ Knocke said.
NSA gets access to the flow of data from telecommunications switches
through the FBI, according to current and former officials. It also
has a partnership with FBI’s Digital Collection system, providing
access to Internet providers and other companies. The existence of a
shadow hub to copy information about AT&T Corp. telecommunications
in San Francisco is alleged in a lawsuit against AT&T filed by the
civil-liberties group Electronic Frontier Foundation, based on
documents provided by a former AT&T official. In that lawsuit, a
former technology adviser to the Federal Communications Commission
says in a sworn declaration that there could be 15 to 20 such
operations around the country. Current and former intelligence
officials confirmed a domestic network of hubs, but didn’t know the
number. “As a matter of policy and law, we can not discuss matters
that are classified,” said FBI spokesman John Miller.
The budget for the NSA’s data-sifting effort is classified, but one
official estimated it surpasses $1 billion. The FBI is requesting to
nearly double the budget for the Digital Collection System in 2009,
compared with last year, requesting $42 million. “Not only do demands
for information continue to increase, but also the requirement to
facilitate information sharing does,” says a budget justification
document, noting an “expansion of electronic surveillance activity in
frequency, sophistication, and linguistic needs.”
Write to Siobhan Gorman at siobhan.gorman@wsj.com