Of all the NSA stories vying for your attention, the most interesting may be Marcy Wheeler's
First, you must understand that Section 215 of the Patriot Act provides the legal justification for collecting cell phone metadata -- by which we mean the records of who called whom at which time
. You may want to read Slate's short explanation
of 215. You will also want to reference this very recent story
The Patriot Act provision, known as Section 215, allows the FBI to require the production of business records and any other “tangible things” -- including “books, records, papers, documents and other items,” for an authorized terrorism or foreign intelligence investigation.
In contrast to standard grand jury subpoenas, material obtained under both Section 215 orders and national security letters must be turned over under so-called “gag orders” that forbid the business or institution that receives the order from notifying its customers or publicly referring to the matter.
The second thing you need to know is that the present scandal was all about an NSA project to collect this metadata daily
Third: Marcy reminds us that the cell phone carriers already have this stuff. They store metadata in-house for years and years.
In a sense, they've been doing the NSA's job all along.
So why would No Such Agency want daily updates? Why not leave the metadata on the servers of Verizon (or whomever), and ask for it as needed?
Well, they tried a system like that between 2002-2006.
A few years ago, there was a now-forgotten mini-brouhaha about that program, because the WP got hold of an Inspector General's report from 2007. The WP story prompted Marcy to write a few earlier posts, like this one
Why did the 2002-2006 system go wrong? Because it was horribly abused.
The problems — that that we know about from the unclassified report (there are secret and TS/SCI versions which probably have bigger horrors) — include:
* FBI General Counsel had no apparent knowledge of 17% of the searches
* Thousands of searches never got recorded
* FBI lied to the telecoms about how urgent the information was to get the information
* FBI did an unknown number of sneak peeks into the data to see if there was something worth getting formally
Altogether, the unclassified IG Report described 26 abuses that should have been reported to then (and once again, since Chuck Hagel became Defense Secretary) inoperable Intelligence Oversight Board.
That includes the tracking of journalist call records in at least three cases (one of which I suspect is James Risen).
In short, it violated many legal principles. And that’s just the stuff that actually got recorded and showed up in an unclassified report.
In another piece, Marcy wrote:
Rather than using a subpoena or a National Security Letter to get phone records from them (both of which would have required a higher level of review), the FBI basically gave them a boilerplate letters saying it was an emergency (thus the “exigent”) and could they please give the FBI the phone data; the FBI promised grand jury subpoenas to follow. Only, in many cases, these weren’t emergencies, they never sent the grand jury subpoenas, and many weren’t even associated with investigations into international terrorism. In other words, FBI massively abused this system to get phone data without necessary oversight.
Marcy believes that the mess uncovered in 2006-2007 prompted the NSA to come up with a scheme to collect metadata silently, automatically and covertly. That way, there would be no need to worry about National Security Letters and all of that other difficult stuff.
Frankly, I'm not sure that Marcy has the chronology quite right.
This above-cited NBC story
says that the FBI's use of 215 "exploded" after 2006. But a new problem arose: Though the feds were sending out tons of "National Security Letters" (requests for data), the telecommunication companies stopped co-operating.
Why? In large measure, methinks, because those corporations were being sued by various parties who were pissed off when they learned that private companies were turning over their records to Uncle. If you want to know more about those lawsuits, start with this data dump
provided by the Electronic Frontiers Foundation.
If you scan that data dump, you'll find that it takes us to the 2009-2010 period. At that time...
...the FBI was using the Section 215 requests to obtain a broad array of records. For example, a top-secret FISC order disclosed last week by the Guardian showed that the FBI had used a single Section 215 request to direct Verizon to turn over "all call detail records or telephony metadata" of its customers for a three month period, literally millions of records.
So now we have a new chronology.
And y'know what? I'm starting to think that this chronology also gets everything wrong. At this point, we need to step back and ask one simple question: Just when
did the "collect all metadata" project truly begin?
You see, back in 2006, USA Today
revealed this program was already in existence even then
"It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.
For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.
Isn't it odd how everyone has forgotten this key news story, published seven years ago?
We now know that the database is called MARINA
, which I hope was not named after Oswald's widow, because if there's one lady who doesn't need any more weird covert shit in her life, it's she.
In order to access the stored data sets, the NSA needs to have a real tangible reason. It's hard to believe this because the law seems to preclude them from collecting the data in bulk without a significant investigative purpose, but that law has been interpreted by the Foreign Intelligence Surveillance Court to relate only to the way in which the data is used.
That is, the NSA can collect the data so long as there is a good chance that it might need it for some future investigation.
This brings us back to that old NSA dodge: They insist that merely collecting
the information isn't wiretapping
. By this logic, it's okay to steal a painting from a museum as long as you don't look at it.
So. How do
you solve a problem like MARINA? It really is a will-o-the-wisp. You can't pin it down.
When did MARINA begin? 2010, 2006, 2001 -- or long before?
If MARINA existed in 2006 or earlier (as USA Today reported), then why was the FBI doing all of that abusive crap outlined in the 2007 IG report? Why was the FBI trying to pry information from the telecommunications companies at that time? Why didn't FBI agents just pop on over to Fort Meade, knock on the NSA's door, and ask for a cup of metadata? Odd thought: Did the FBI even know
about MARINA? Why would you create a thing like MARINA if you aren't going to let the FBI make use of it?
This stuff's freakin' impossible
for an outsider to get his head around...!