Declan McCullagh at cnet.com reports on Rep. Jerrold Nadler’s revelation that the United States executive branch has admitted in a secret briefing to Members of the US House of Representatives that a US government analyst can listen to phone calls at his own discretion without any warrant or other authorization. McCullagh’s dense article, well worth a close read, proceeds to explain that this means “thousands of low-ranking analysts” probably can unilaterally decide to snoop on the contents of email, text, and instant messages as well. McCullagh also addresses the enormity of the mass spying operation and its capabilities.
Nadler’s revelation directly contradicts President Barack Obama’s emphatic denials earlier this month:
When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program is about. As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. If these folks — if the intelligence community then actually wants to listen to a phone call, they’ve got to go back to a federal judge, just like they would in a criminal investigation.
So I want to be very clear — some of the hype that we’ve been hearing over the last day or so — nobody is listening to the content of people’s phone calls. This program, by the way, is fully overseen not just by Congress, but by the FISA Court — a court specially put together to evaluate classified programs to make sure that the executive branch, or government generally, is not abusing them, and that it’s being carried out consistent with the Constitution and rule of law.
And so, not only does that court authorize the initial gathering of data, but — I want to repeat — if anybody in government wanted to go further than just that top-line data and want to, for example, listen to Jackie Calmes’ phone call, they would have to go back to a federal judge and indicate why, in fact, they were doing further probing.
Now, with respect to the Internet and emails — this does not apply to U.S. citizens and it does not apply to people living in the United States. And again, in this instance, not only is Congress fully apprised of it, but what is also true is that the FISA Court has to authorize it.
Obama’s claims that only metadata was collected, that the program was fully overseen by Congress, and that content of phone calls and Internet communications could only be obtained via FISA court authorization was repeated approvingly by ardent defenders of the mass spying program.
Even if Obama’s claims had been true, they provided little assurance that the spying program is not dramatically infringing on our privacy.
First, metadata of our phone calls and Internet communications, rather than being trivial, does provide very detailed information about our personal lives. Jay Stanley and Ben Wizner’s concise article at Reuters laying out the revealing nature of metadata begins with the following observation:
In the wake of The Guardian’s remarkable revelation Wednesday that the National Security Agency is collecting phone records from millions of Americans, defenders of this dragnet surveillance program are insisting that the intelligence agency isn’t eavesdropping on the calls – it’s just scooping up “metadata.” The implication is that civil liberties complaints about Orwellian surveillance tactics are overblown.
But any suggestion that Americans have nothing to worry about from this dragnet collection of communications metadata is wrong. Even without intercepting the content of communications, the government can use metadata to learn our most intimate secrets – anything from whether we have a drinking problem to whether we’re gay or straight. The suggestion that metadata is “no big deal” – a view that, regrettably, is still reflected in the law – is entirely out of step with the reality of modern communications.
Second, keeping Congress apprised of the mass spying program provides little extra protection. As Nadler’s revelation indicates, not all Members of Congress had been fully informed about the mass spying program. Indeed, Director of National Intelligence James R. Clapper even claimed, in response to a question from Sen. Ron Wyden, that the National Security Agency was not intentionally collecting any kind of data on millions or hundreds of millions of Americans. Yet, even if all members of Congress had been fully informed of the program, that would provide little consolation. Congress is capable of supporting bad programs and doing so for decades. In fact, the highest ranking Democrat and Republican Senators on the Senate Select Committee on Intelligence reacted to the revelation of the FISA court order for Verizon to give over to the US government information concerning its millions of customers’ phone conversations by quickly preparing a joint press conference to unequivocally defend the mass spying program.
Third, while Nadler’s revelation indicates FISA court approval is not required to snoop on the contents of Americans’ private communications, requiring such approval would likely provide little to no protection. The secretive FISA court last year failed to deny any of 1,789 applications for monitoring electronic communications.
The US government’s mass spying program would be a horrendous abuse of power even if it were draped in a shoddy coat of legitimacy as President Obama described it. Nadler’s new revelation confirms the suspicions of critical observers and the warnings of whistle-blowers that the program is even worse.
