"Nobody is listening to your phone calls": Oh REALLY...?

In response to the NSA ruckus, Obama assured the nation: "Nobody is listening to your phone calls." This is true. But a true statement may mislead.

No one can deny that a computer listens to your phone calls -- that's what the Trailblazer Project was all about. As the Electronic Frontier Foundation puts it:

News reports in December 2005 first revealed that the National Security Agency (NSA) has been intercepting Americans’ phone calls and Internet communications. Those news reports, combined with a USA Today story in May 2006 and the statements of several members of Congress, revealed that the NSA is also receiving wholesale copies of American's telephone and other communications records.

The NSA believes that they have "listened in" to a conversation only when human ears have heard audio. Obviously, it's physically impossible to listen to all calls (unless the NSA were to hire half the country to eavesdrop on the other half). A computer goes through that material, translates it into written form, and scans for key words.

Technically, Obama told a truth. Not the whole truth.

The NSA is supposed to target only "non-US persons," but the nature of the beast is such that a lot of domestic dialog gets picked up anyways. The rules which allow for the maintenance of those records are more elastic than Santa's waistband:

They show, for example, that N.S.A. officers who intercept an American online or on the phone — say, while monitoring the phone or e-mail of a foreign diplomat or a suspected terrorist — can preserve the recording or transcript if they believe the contents include “foreign intelligence information” or evidence of a possible crime. They can likewise preserve the intercept if it contains information on a “threat of serious harm to life or property” or sheds light on technical issues like encryption or vulnerability to cyberattacks.

"Evidence of a possible crime" is a phrase that can cover a lot of territory.

Even in a private telephone conversation, I'm not the sort of person who is likely to shout "I'm gonna kill that sunvabitch!" But we all have a right to say those words in private without having to worry about whether our NSA overseers will judge that phrase to be a serious threat instead of jolly hyperbole.

Glenn Greenwald's latest revelations make clear that the NSA is in that very business:

However, alongside those provisions, the Fisa court-approved policies allow the NSA to:

• Keep data that could potentially contain details of US persons for up to five years;

• Retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;

• Preserve "foreign intelligence information" contained within attorney-client communications;

• Access the content of communications gathered from "U.S. based machine[s]" or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.

"Relevant to cynersecurity"..."usable intelligence"..."threat of harm": I'd say that Uncle has allowed himself enough legal leeway to peek at nearly everything you do and say.
 
As Ed Snowden pointed out in his interview, whatever protections we still have are really a matter of policy, not law. Policies change. Even if you trust Obama, one day you will live under a president you do not trust. That president will enact policies of his own.

Actually, as few now recall, Bush argued that FISA never applied to his administration.

Under Bush, anyone with even mildly left-wing views might find himself on a no-fly list. Peaceful nature conservancy groups were considered eco-terrorists and infiltrated by the FBI. If another Bush gets into power, what kind of protections do you expect to have when speaking privately on your cell phone?

Marcy Wheeler addresses a similar point in The Nation. She notes that our current program replaced an earlier one in 2006...

A 2010 report by the Justice Department’s inspector general (IG) shows that the predecessor program was a mess. The FBI failed to keep adequate records of requests made by the government to phone companies, frequently violating the limits of what they were entitled to take. More troubling still is a tool the FBI implemented, ostensibly for emergency situations, called “exigent letters”: basically a request to phone companies to provide data immediately, with a promise to provide the appropriate legal paperwork—either an NSL or a subpoena—after the fact. Using exigent letters, the FBI obtained records for more than 3,000 phone numbers, often failing to submit the paperwork, or doing so without the appropriate approvals. Requests were often approved by junior staffers, who had no authority to do so.

Moreover, some requests were not tied, as required, to a specific authorized investigation. Significant numbers (perhaps 17 percent, judging from figures in the IG report) were tied not to national security investigations, but to domestic ones. At times, the FBI requested information on phone numbers when no investigation was pending. When accepting information from phone companies, the FBI didn’t always compare its contents with the original request and therefore may have entered unrelated information into FBI databases. In an unknown number of other requests, the FBI submitted no paperwork at all.

In addition, in several cases, the FBI obtained reporters’ phone records by using this method, including the Post’s Ellen Nakashima and the Times’s Jane Perlez.

Is the NSA, in the name of counter-terrorism, creating a new world of political repression? Sure seems like it. As Marcy notes, the protections for whistleblowers are weaker now than was the case in 2006.

In an earlier post, we asked: Why is the NSA collecting "metadata" on our phone calls when the phone companies themselves retain that information for a fairly long period of time? Marcy gives what I believe to be the answer: The government does not want to create a legal paper trail by asking the phone carriers for that information on a case-by-case basis.

Now ask yourself: Why wouldn't the government want to create a checkable record?

Added note: Back in 2007, I pissed off a lot of people with my assertion that many of our problems in this area trace back to the original FISA act of 1978. Six years ago, a major controversy erupted when many liberals (rightly) feared that Bush was gutting FISA protections. When I said that the problem went deeper -- that the act itself was ill-written -- these same liberals foolishly construed my statement to be somehow pro-Bush.

(Not for the first or last time, blinkered partisanship -- what I call "the endless game of shirts-vs.-skins" -- blinded people to a larger issue.)

Y'see, I'm old enough to recall 1978. At that time, quite a few folks on the left side of the aisle voiced worries that the FISA Act allowed the government too much leeway for mischief; even though the tech was more primitive back then, the potential for Big Brother-ish abuse still existed. Such concerns were considered perfectly respectable, and one could give voice to them without injury to one's standing as a liberal.

Twenty-nine years later, in 2007, I was booed off the stage when I said that FISA should be rewritten from the ground up. Perhaps now, in 2013, more people will take my point.