NSA call database
Encyclopedia
The United States
' National Security Agency
(NSA) maintains a database
containing hundreds of billions of records of telephone call
s made by U.S. citizens from the four largest telephone carriers
in the United States: AT&T
, SBC, BellSouth
(all three now called AT&T), and Verizon.
The existence of this database and the NSA program that compiled it was unknown to the general public until USA Today
broke the story on May 10, 2006. It is estimated that the database contains over 1.9 trillion call-detail record
s. According to Bloomberg News, the effort began approximately seven months before the September 11, 2001 attacks
.
The records include detailed call information (caller, receiver, date/time of call, length of call, etc) for use in traffic analysis
and social network analysis, but do not include audio information or transcripts of the content of the phone calls.
The database's existence has prompted fierce objections. It is often viewed as an illegal warrantless search and a violation of the pen register
provisions of the Foreign Intelligence Surveillance Act and (in some cases) the Fourth Amendment of the United States Constitution
.
The George W. Bush administration
neither confirmed nor denied the existence of the domestic call record database. This contrasts with a related NSA controversy concerning warrantless surveillance of selected telephone calls
; in that case they did confirm the existence of the program of debated legality. The program's code name is Stellar wind
.
Similar programmes exist or are planned in other countries, including Sweden (Titan traffic database
) and Great Britain (Interception Modernisation Programme
)
filed a related suit against AT&T on 31 January 2006, alleging that the firm had given NSA access to its database, a charge reiterated in the USA Today article.
Verizon and BellSouth have both claimed they were never contacted by the NSA, nor did they provide any information to the agency, though US codes of law permit companies to lie about their activities when the President believes that telling the truth would compromise national security.
and Wired magazine
that the program involved the NSA setting up splitters
to the routing cores of many telecoms companies and to major Internet traffic hubs. These provided a direct connection via an alleged "black room"
known as Room 641A
. This room allows most U.S. telecoms communications and Internet traffic to be redirected to the NSA. The NSA used them to eavesdrop and order police investigations of tens of thousands of ordinary Americans without judicial warrants.
According to a security consultant who worked on the program, "What the companies are doing is worse than turning over records ... they’re providing total access to all the data", and a former senior intelligence official said, "This is not about getting a cardboard box of monthly phone bills in alphabetical order ... the N.S.A. is getting real-time actionable intelligence."
On June 30, 2006 USA Today printed a partial retraction about its controversial article the prior month saying: "... USA TODAY also spoke again with the sources who had originally provided information about the scope and contents of the domestic calls database. All said the published report accurately reflected their knowledge and understanding of the NSA program, but none could document a contractual relationship between BellSouth or Verizon and the NSA, or that the companies turned over bulk calling records to the NSA. Based on its reporting after the May 11 article, USA TODAY has now concluded that while the NSA has built a massive domestic calls record database involving the domestic call records of telecommunications companies, the newspaper cannot confirm that BellSouth or Verizon contracted with the NSA to provide bulk calling records to that database ..."
Companies are permitted by US securities law (15 U.S.C. 78m(b)(3)(A)) to refrain from properly accounting for their use of assets in matters involving national security, when properly authorized by an agency or department head acting under authorization by the President. This legalese essentially means that companies can falsify their accounting reports and lie about their activities when the President decides that it is in the interests of national security to do so. President Bush
issued a presidential memorandum
on May 5, 2006 delegating authority to make such a designation to Director of National Intelligence John Negroponte
, just as the NSA call database scandal appeared in the media.
's then CEO, Joseph Nacchio
, doubted the NSA's assertion that warrants
were unnecessary. In negotiations, the NSA pressured the company to turn over the records. Qwest attorneys asked the NSA to obtain approval from the United States Foreign Intelligence Surveillance Court
. When the NSA indicated they would not seek this approval, Qwest's new CEO Richard Notebaert
declined NSA's request for access. Later, T-Mobile
explicitly stated they do not participate in warrantless surveillance.
According to the research group TeleGeography, AT&T (including the former SBC), Verizon, and BellSouth connected nearly 500 billion telephone calls in 2005 and nearly 2 trillion calls since late 2001. It is reported that all four companies were paid to provide the information to the NSA.
, it could be used as an element of broader national security analytical efforts and data mining
. These efforts could involve analysts using the data to connect phone numbers with names and links to persons of interest. Such efforts have been the focus of the NSA's recent attempts to acquire key technologies from high tech firms in Silicon Valley
and elsewhere. Link analysis
software, such as Link Explorer or the Analyst's Notebook
, is used by law enforcement to organize and view links that are demonstrated through such information as telephone and financial records, which are imported into the program from other sources. Neural network software
is used to detect patterns, classify and cluster data as well as forecast future events.
Using relational mathematics it is possible to find out if someone changes their telephone number by analyzing and comparing calling patterns.
ThinThread
, a system which pre-dated this database, but was discarded for the Trailblazer Project
, may have introduced some of the technology which is used to analyze the data http://www.baltimoresun.com/news/custom/attack/bal-te.nsa18may18,0,4406058.story?coll=bal-home-headlines. Where ThinThread encrypted privacy data, however, no such measures have been reported with respect to the current system.
was scheduled to hold hearings with NSA whistle-blower
Russell Tice the week following the revelation of the NSA call database. Tice indicated that his testimony would reveal information on additional illegal activity related to the NSA call database that has not yet been made public, and that even a number of NSA employees believe what they are doing is illegal. Tice also told the National Journal
that he "will not confirm or deny" if his testimony will include information on spy satellite
s being used to spy on American citizens from space.
However, these hearings did not occur and the reason why is unknown.
Spurred by the public disclosure of the NSA call database, a lawsuit was filed against Verizon on May 12, 2006 at the Federal District Court in Manhattan by Princeton, N.J.-based attorneys Carl Mayer and Bruce Afran. The lawsuit seeks $1,000 for each violation of the Telecommunications Act of 1996
, and would total approximately $5 billion if the court certifies the suit as a class-action lawsuit.
Oregon
On May 12, 2006, an Oregon man filed a lawsuit against Verizon Northwest for $1 billion.
Maine
On May 13, 2006, a complaint in Maine was filed by a group of 21 Maine residents who asked the Public Utilities Commission (PUC) to demand answers from Verizon about whether it provided telephone records and information to the federal government without customers' knowledge or consent. Maine law requires the PUC to investigate complaints against a utility if a petition involves at least 10 of the utility's customers.
California (E.F.F.)
Shortly after the NSA call database story surfaced, a San Francisco lawsuit, Hepting v. AT&T
, was filed by the Electronic Frontier Foundation
.
The US government indicated in an April 28 Statement of Interest in the AT&T case, that it intends to invoke the State Secrets Privilege
in a bid to dismiss the action.
has a good overview of the relevant legal concerns in The Washington Spectator.
Separate from the question of whether the database is illegal under FISA, one may ask whether the call detail records are covered by the privacy protection of the Fourth Amendment
of the U.S. Constitution. This is unclear. As the U.S. has no explicit constitutional guarantee on the secrecy of correspondence
, any protection on communications is an extension by litigation of the privacy provided to "houses and papers".
This again is dependent on the flexuous requirement of a reasonable expectation of privacy.
The most relevant U.S. Supreme Court case is Smith v. Maryland
.
In that case, the Court addressed pen register
s, which are mechanical devices that record the numbers dialed on a telephone; a pen register does not record call contents. The Court ruled that pen registers are not covered by the Fourth Amendment
: "The installation and use of a pen register, [...] was not a 'search,' and no warrant was required." More generally, "This Court consistently has held that a person has no legitimate expectation of privacy in information he [...] voluntarily turns over to third parties."
The data collecting activity may however be illegal under other telecommunications privacy laws.
(18 U.S.C. § 2701) forbids turnover of information to the government without a warrant or court order, the law gives consumers the right to sue for violations of the act.
However, the Stored Communications Act also authorizes phone providers to conduct electronic surveillance if the Attorney General of the United States certifies that a court order or warrant is not required and that the surveillance is required:
The Act provides for special penalties for violators when "the offense is committed...in violation of the Constitution or laws of the United States or any State."
Finally, the act allows any customer whose telephone company provided this information to sue that company in civil court for (a) actual damages to the consumer, (b) any profits by the telephone company, (c) punitive damages, and (d) attorney fees. The minimum amount a successful customer will recover under (a) and (b) is $1,000:
of 1994, after it was passed in both the House and Senate by a voice vote. That law is an act "to make clear a telecommunications carrier's duty to cooperate in the interception of communications for law enforcement purposes, and for other purposes." The act states that a court order isn't the only lawful way of obtaining call information, saying, "A telecommunications carrier shall ensure that any interception of communications or access to call-identifying information effected within its switching premises can be activated only in accordance with a court order or other lawful authorization."
was inspired by the recommendations of the Church Committee
, which investigated a wide range of intelligence and counter-intelligence incidents and programs, including some U.S. Army programs and the FBI program COINTELPRO
.
In 1971, the US media reported that COINTELPRO targeted thousands of Americans during the 1960s, after several stolen FBI dossiers were passed to news agencies. The Church Committee
Senate final report, which investigated COINTELPRO declared that:
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
' National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
(NSA) maintains a database
Database
A database is an organized collection of data for one or more purposes, usually in digital form. The data are typically organized to model relevant aspects of reality , in a way that supports processes requiring this information...
containing hundreds of billions of records of telephone call
Telephone call
A telephone call is a connection over a telephone network between the calling party and the called party.-Information transmission:A telephone call may carry ordinary voice transmission using a telephone, data transmission when the calling party and called party are using modems, or facsimile...
s made by U.S. citizens from the four largest telephone carriers
Telephone company
A telephone company is a service provider of telecommunications services such as telephony and data communications access. Many were at one time nationalized or state-regulated monopolies...
in the United States: AT&T
AT&T
AT&T Inc. is an American multinational telecommunications corporation headquartered in Whitacre Tower, Dallas, Texas, United States. It is the largest provider of mobile telephony and fixed telephony in the United States, and is also a provider of broadband and subscription television services...
, SBC, BellSouth
BellSouth
BellSouth Corporation is an American telecommunications holding company based in Atlanta, Georgia. BellSouth was one of the seven original Regional Bell Operating Companies after the U.S...
(all three now called AT&T), and Verizon.
The existence of this database and the NSA program that compiled it was unknown to the general public until USA Today
USA Today
USA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
broke the story on May 10, 2006. It is estimated that the database contains over 1.9 trillion call-detail record
Call detail record
A call detail record , also known as call data record, is a data record produced by a telephone exchange or other telecommunications equipment documenting the details of a phone call that passed through the facility or device...
s. According to Bloomberg News, the effort began approximately seven months before the September 11, 2001 attacks
September 11, 2001 attacks
The September 11 attacks The September 11 attacks The September 11 attacks (also referred to as September 11, September 11th or 9/119/11 is pronounced "nine eleven". The slash is not part of the pronunciation...
.
The records include detailed call information (caller, receiver, date/time of call, length of call, etc) for use in traffic analysis
Traffic analysis
Traffic analysis is the process of intercepting and examining messages in order to deduce information from patterns in communication. It can be performed even when the messages are encrypted and cannot be decrypted. In general, the greater the number of messages observed, or even intercepted and...
and social network analysis, but do not include audio information or transcripts of the content of the phone calls.
The database's existence has prompted fierce objections. It is often viewed as an illegal warrantless search and a violation of the pen register
Pen register
A pen register is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.The United States statutes...
provisions of the Foreign Intelligence Surveillance Act and (in some cases) the Fourth Amendment of the United States Constitution
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
.
The George W. Bush administration
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
neither confirmed nor denied the existence of the domestic call record database. This contrasts with a related NSA controversy concerning warrantless surveillance of selected telephone calls
NSA warrantless surveillance controversy
The NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
; in that case they did confirm the existence of the program of debated legality. The program's code name is Stellar wind
Stellar wind (code name)
Stellar Wind is the open secret code name for certain information collection activities performed by the United States' National Security Agency and revealed by Thomas M. Tamm to New York Times reporters James Risen and Eric Lichtblau. The operation was approved by President George W...
.
Similar programmes exist or are planned in other countries, including Sweden (Titan traffic database
Titan traffic database
The Titan traffic database is a database established by the Swedish National Defence Radio Establishment where call detail records of telephony and internet traffic and transaction data concerning international telecommonications are stored...
) and Great Britain (Interception Modernisation Programme
Interception Modernisation Programme
The Interception Modernisation Programme is a UK government initiative to extend the government's capabilities for intercepting and storing communications data...
)
Lawsuit
The Electronic Frontier FoundationElectronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
filed a related suit against AT&T on 31 January 2006, alleging that the firm had given NSA access to its database, a charge reiterated in the USA Today article.
Verizon and BellSouth have both claimed they were never contacted by the NSA, nor did they provide any information to the agency, though US codes of law permit companies to lie about their activities when the President believes that telling the truth would compromise national security.
Internet monitoring
On May 22, 2006, it was revealed by investigative reporter Seymour HershSeymour Hersh
Seymour Myron Hersh is an American Pulitzer Prize-winning investigative journalist and author based in Washington, D.C. He is a regular contributor to The New Yorker magazine on military and security matters...
and Wired magazine
Wired (magazine)
Wired is a full-color monthly American magazine and on-line periodical, published since January 1993, that reports on how new and developing technology affects culture, the economy, and politics...
that the program involved the NSA setting up splitters
Beam splitter
A beam splitter is an optical device that splits a beam of light in two. It is the crucial part of most interferometers.In its most common form, a rectangle, it is made from two triangular glass prisms which are glued together at their base using Canada balsam...
to the routing cores of many telecoms companies and to major Internet traffic hubs. These provided a direct connection via an alleged "black room"
Cabinet noir
Cabinet noir was the name given in France to the office where the letters of suspected persons were opened and read by public officials before being forwarded to their destination...
known as Room 641A
Room 641A
Room 641A is an intercept facility operated by AT&T for the U.S. National Security Agency, beginning in 2003. Room 641A is located in the SBC Communications building at 611 Folsom Street, San Francisco, three floors of which were occupied by AT&T before SBC purchased AT&T...
. This room allows most U.S. telecoms communications and Internet traffic to be redirected to the NSA. The NSA used them to eavesdrop and order police investigations of tens of thousands of ordinary Americans without judicial warrants.
According to a security consultant who worked on the program, "What the companies are doing is worse than turning over records ... they’re providing total access to all the data", and a former senior intelligence official said, "This is not about getting a cardboard box of monthly phone bills in alphabetical order ... the N.S.A. is getting real-time actionable intelligence."
On June 30, 2006 USA Today printed a partial retraction about its controversial article the prior month saying: "... USA TODAY also spoke again with the sources who had originally provided information about the scope and contents of the domestic calls database. All said the published report accurately reflected their knowledge and understanding of the NSA program, but none could document a contractual relationship between BellSouth or Verizon and the NSA, or that the companies turned over bulk calling records to the NSA. Based on its reporting after the May 11 article, USA TODAY has now concluded that while the NSA has built a massive domestic calls record database involving the domestic call records of telecommunications companies, the newspaper cannot confirm that BellSouth or Verizon contracted with the NSA to provide bulk calling records to that database ..."
Denials
Five days after the story appeared, BellSouth officials said they could not find evidence of having handed over such records. "Based on our review to date, we have confirmed no such contract exists and we have not provided bulk customer calling records to the NSA," the officials said. USA Today replied that BellSouth officials had not denied the allegation when contacted the day before the story was published. Verizon has also asserted that it has not turned over such records.Companies are permitted by US securities law (15 U.S.C. 78m(b)(3)(A)) to refrain from properly accounting for their use of assets in matters involving national security, when properly authorized by an agency or department head acting under authorization by the President. This legalese essentially means that companies can falsify their accounting reports and lie about their activities when the President decides that it is in the interests of national security to do so. President Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
issued a presidential memorandum
Presidential memorandum
A presidential memorandum is a type of presidential order issued by the President of the United States to the executive branch of the United States government. Presidential memoranda do not have an established process for issuance or publication...
on May 5, 2006 delegating authority to make such a designation to Director of National Intelligence John Negroponte
John Negroponte
John Dimitri Negroponte is an American diplomat. He is currently a research fellow and lecturer in international affairs at Yale University's Jackson Institute for Global Affairs...
, just as the NSA call database scandal appeared in the media.
Qwest Communications
The USA Today report indicated that QwestQwest
Qwest Communications International, Inc. was a large United States telecommunications carrier. Qwest provided local service in 14 western U.S. states: Arizona, Colorado, Idaho, Iowa, Minnesota, Montana, Nebraska, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming.On April...
's then CEO, Joseph Nacchio
Joseph Nacchio
Joseph P. Nacchio , was chairman of the board and chief executive officer of Qwest Communications International from 1997 to 2002. He was convicted of 19 counts of insider trading in Qwest stock on April 19, 2007. On July 27, 2007, he was sentenced to six years in federal prison...
, doubted the NSA's assertion that warrants
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
were unnecessary. In negotiations, the NSA pressured the company to turn over the records. Qwest attorneys asked the NSA to obtain approval from the United States Foreign Intelligence Surveillance Court
United States Foreign Intelligence Surveillance Court
The United States Foreign Intelligence Surveillance Court is a U.S. federal court authorized under , . It was established by the Foreign Intelligence Surveillance Act of 1978 . The FISC oversees requests for surveillance warrants against suspected foreign intelligence agents inside the United...
. When the NSA indicated they would not seek this approval, Qwest's new CEO Richard Notebaert
Richard Notebaert
Richard C. Notebaert is the former Chairman and CEO of Qwest, Tellabs and Ameritech. He was credited for saving Qwest and Tellabs from bankruptcy, and making Ameritech the most successful "Baby Bell"....
declined NSA's request for access. Later, T-Mobile
T-Mobile
T-Mobile International AG is a German-based holding company for Deutsche Telekom AG's various mobile communications subsidiaries outside Germany. Based in Bonn, Germany, its subsidiaries operate GSM and UMTS-based cellular networks in Europe, the United States, Puerto Rico and the US Virgin Islands...
explicitly stated they do not participate in warrantless surveillance.
Contents of the database
According to the article, the database is "the largest database ever assembled in the world", and contains call-detail records (CDRs) for all phone calls, domestic and international. A call-detail record consists of the phone numbers of the callers and recipients along with time and duration of the call. While the database does not contain specific names or addresses, that information is widely available from non-classified sources.According to the research group TeleGeography, AT&T (including the former SBC), Verizon, and BellSouth connected nearly 500 billion telephone calls in 2005 and nearly 2 trillion calls since late 2001. It is reported that all four companies were paid to provide the information to the NSA.
Uses of the database
Although such a database of phone records would not be useful on its own as a tool for national securityNational security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
, it could be used as an element of broader national security analytical efforts and data mining
Data mining
Data mining , a relatively young and interdisciplinary field of computer science is the process of discovering new patterns from large data sets involving methods at the intersection of artificial intelligence, machine learning, statistics and database systems...
. These efforts could involve analysts using the data to connect phone numbers with names and links to persons of interest. Such efforts have been the focus of the NSA's recent attempts to acquire key technologies from high tech firms in Silicon Valley
Silicon Valley
Silicon Valley is a term which refers to the southern part of the San Francisco Bay Area in Northern California in the United States. The region is home to many of the world's largest technology corporations...
and elsewhere. Link analysis
Network analysis
Network analysis can refer to:* Analysis of general networks: see Network theory.* Electrical network analysis see Network analysis .* Social network analysis.You may also be interested in Network planning and design...
software, such as Link Explorer or the Analyst's Notebook
Analyst's Notebook
Analyst's Notebook is a software product from i2 Limited used for data analysis and investigation. It is a part of the Human Terrain System, a United States Army program which embeds social scientists with combat brigades. Several investigations, including an investigation into fraud in the U.S....
, is used by law enforcement to organize and view links that are demonstrated through such information as telephone and financial records, which are imported into the program from other sources. Neural network software
Neural network software
Neural network software is used to simulate, research, develop and apply artificial neural networks, biological neural networks and in some cases a wider array of adaptive systems.-Simulators:...
is used to detect patterns, classify and cluster data as well as forecast future events.
Using relational mathematics it is possible to find out if someone changes their telephone number by analyzing and comparing calling patterns.
ThinThread
ThinThread
ThinThread is the name of a project that the United States National Security Agency engaged in during the 1990s, according to a May 17, 2006 article in the Baltimore Sun...
, a system which pre-dated this database, but was discarded for the Trailblazer Project
Trailblazer Project
Trailblazer was a United States National Security Agency program intended to analyze data carried on communications networks like the internet. It was able to track communication methods such as cell phones and e-mail...
, may have introduced some of the technology which is used to analyze the data http://www.baltimoresun.com/news/custom/attack/bal-te.nsa18may18,0,4406058.story?coll=bal-home-headlines. Where ThinThread encrypted privacy data, however, no such measures have been reported with respect to the current system.
Government and public response
- In response, the Bush administration defended its activities, while neither specifically confirming or denying the existence of the potentially illegal program. According to the Deputy White House Press SecretaryWhite House Press SecretaryThe White House Press Secretary is a senior White House official whose primary responsibility is to act as spokesperson for the government administration....
, "The intelligence activities undertaken by the United States government are lawful, necessary and required to protect Americans from terrorist attacks." - SenatorUnited States SenateThe United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
Arlen SpecterArlen SpecterArlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
has said that he will hold hearings with the telecommunications CEOs involved. The Senate Intelligence Committee is expected to question Air Force General Michael Hayden about the data-gathering during his confirmation hearings as Director of the Central Intelligence AgencyDirector of the Central Intelligence AgencyDirector of the Central Intelligence Agency serves as the head of the Central Intelligence Agency, which is part of the United States Intelligence Community. The Director reports to the Director of National Intelligence . The Director is assisted by the Deputy Director of the Central...
. Hayden was in charge of the NSA from 1999 through 2005. - Commenting on the apparent incompatibility of the NSA call database with previous assurances by President Bush, former RepublicanRepublican Party (United States)The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
Speaker of the HouseUnited States House of RepresentativesThe United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
Newt GingrichNewt GingrichNewton Leroy "Newt" Gingrich is a U.S. Republican Party politician who served as the House Minority Whip from 1989 to 1995 and as the 58th Speaker of the U.S. House of Representatives from 1995 to 1999....
told Fox News, "I’m not going to defend the indefensible. The Bush administration has an obligation to level with the American people... I don’t think the way they’ve handled this can be defended by reasonable people."- Later on Meet the PressMeet the PressMeet the Press is a weekly American television news/interview program produced by NBC. It is the longest-running television series in American broadcasting history, despite bearing little resemblance to the original format of the program seen in its television debut on November 6, 1947. It has been...
, Gingrich stated that "everything that has been done is totally legal," and he said the NSA program was defending the indefensible, "because they refuse to come out front and talk about it."
- Later on Meet the Press
- Republican Senator Lindsey GrahamLindsey GrahamLindsey Olin Graham is the senior U.S. Senator from South Carolina and a member of the Republican Party. Previously he served as the U.S. Representative for .-Early life, education and career:...
told Fox News, "The idea of collecting millions or thousands of phone numbers, how does that fit into following the enemy?" - House Republican Caucus chairwoman Deborah PryceDeborah PryceDeborah D. Pryce is an American politician from Ohio and former Republican member of the United States House of Representatives for Ohio's 15th congressional district, which includes the western half of Columbus and the surrounding suburbs.She is divorced from Randy Walker and now lives in Upper...
said, "While I support aggressively tracking al-QaidaAl-QaedaAl-Qaeda is a global broad-based militant Islamist terrorist organization founded by Osama bin Laden sometime between August 1988 and late 1989. It operates as a network comprising both a multinational, stateless army and a radical Sunni Muslim movement calling for global Jihad...
, the administration needs to answer some tough questions about the protection of our civil liberties." - Former Republican House Majority Leader John BoehnerJohn BoehnerJohn Andrew Boehner is the 61st and current Speaker of the United States House of Representatives. A member of the Republican Party, he is the U.S. Representative from , serving since 1991...
said, "I am concerned about what I read with regard to NSA databases of phone calls." - DemocraticDemocratic Party (United States)The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
senator Patrick LeahyPatrick LeahyPatrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...
, ranking member of the Senate Judiciary CommitteeUnited States Senate Committee on the JudiciaryThe United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...
, said "Are you telling me that tens of millions of AmericansDemographics of the United StatesAs of today's date, the United States has a total resident population of , making it the third most populous country in the world. It is a very urbanized population, with 82% residing in cities and suburbs as of 2008 . This leaves vast expanses of the country nearly uninhabited...
are involved with al-Qaida? These are tens of millions of Americans who are not suspected of anything. ... Where does it stop?" - On May 15, 2006, FCCFederal Communications CommissionThe Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
Commissioner Copps called for the FCC to open an inquiry into the lawfulness of the disclosure of America's phone records. - In May, 2006, Pat RobertsonPat RobertsonMarion Gordon "Pat" Robertson is a media mogul, television evangelist, ex-Baptist minister and businessman who is politically aligned with the Christian Right in the United States....
called the NSA wire-tapping a "tool of oppression." - In May 2006, former majority leader Trent LottTrent LottChester Trent Lott, Sr. , is a former United States Senator from Mississippi and has served in numerous leadership positions in the House of Representatives and the Senate....
stated "What are people worried about? What is the problem? Are you doing something you're not supposed to?" - On May 16, 2006, both Verizon and BellSouth stated not only did they not hand over records, but that they were never contacted by the NSA in the first place.
- On June 30, 2006, Bloomberg reported the NSA "asked AT&T Inc. to help it set up a domestic call monitoring site seven months before the Sept. 11, 2001 attacks," citing court papers filed June 23, 2006 by lawyers in McMurray v. Verizon Communications Inc., 06cv3650, in the Southern District of New York.
Polls
- In a new NewsweekNewsweekNewsweek is an American weekly news magazine published in New York City. It is distributed throughout the United States and internationally. It is the second-largest news weekly magazine in the U.S., having trailed Time in circulation and advertising revenue for most of its existence...
poll of 1007 people conducted between May 11 and May 12, 2006, 53% of Americans said that "the NSA's surveillance program goes too far in invading privacy " and 57% said that in light of the NSA data-mining news and other executive actions the Bush-Cheney Administration has “gone too far in expanding presidential power" while 41% see it as a tool to "combat terrorism" and 35% think the Administration’s actions were appropriate.
- According to a Washington Post telephone poll of 502 people, conducted on May 11, 63% of the American public supports the program, 35% do not; 66% were not bothered by the idea of the NSA having a record of their calls, while 34% were; 56% however thought it was right for the knowledge of the program to be released while 42% thought it was not. These results were later contradicted by further polls on the subject, specifically a USA Today/Gallup poll showing 51% opposition and 43% support for the program.
Political action
The Senate Armed Services CommitteeUnited States Senate Committee on Armed Services
The Committee on Armed Services is a committee of the United States Senate empowered with legislative oversight of the nation's military, including the Department of Defense, military research and development, nuclear energy , benefits for members of the military, the Selective Service System and...
was scheduled to hold hearings with NSA whistle-blower
Whistleblower
A whistleblower is a person who tells the public or someone in authority about alleged dishonest or illegal activities occurring in a government department, a public or private organization, or a company...
Russell Tice the week following the revelation of the NSA call database. Tice indicated that his testimony would reveal information on additional illegal activity related to the NSA call database that has not yet been made public, and that even a number of NSA employees believe what they are doing is illegal. Tice also told the National Journal
National Journal
National Journal is a nonpartisan American weekly magazine that reports on the current political environment and emerging political and policy trends. National Journal was first published in 1969. Times Mirror owned the magazine from 1986 to 1997, when it was purchased by David G. Bradley...
that he "will not confirm or deny" if his testimony will include information on spy satellite
Spy satellite
A spy satellite is an Earth observation satellite or communications satellite deployed for military or intelligence applications....
s being used to spy on American citizens from space.
However, these hearings did not occur and the reason why is unknown.
Claims
New JerseySpurred by the public disclosure of the NSA call database, a lawsuit was filed against Verizon on May 12, 2006 at the Federal District Court in Manhattan by Princeton, N.J.-based attorneys Carl Mayer and Bruce Afran. The lawsuit seeks $1,000 for each violation of the Telecommunications Act of 1996
Telecommunications Act of 1996
The Telecommunications Act of 1996 was the first major overhaul of United States telecommunications law in nearly 62 years, amending the Communications Act of 1934. This Act, signed by President Bill Clinton, was a major stepping stone towards the future of telecommunications, since this was the...
, and would total approximately $5 billion if the court certifies the suit as a class-action lawsuit.
Oregon
On May 12, 2006, an Oregon man filed a lawsuit against Verizon Northwest for $1 billion.
Maine
On May 13, 2006, a complaint in Maine was filed by a group of 21 Maine residents who asked the Public Utilities Commission (PUC) to demand answers from Verizon about whether it provided telephone records and information to the federal government without customers' knowledge or consent. Maine law requires the PUC to investigate complaints against a utility if a petition involves at least 10 of the utility's customers.
California (E.F.F.)
Shortly after the NSA call database story surfaced, a San Francisco lawsuit, Hepting v. AT&T
Hepting v. AT&T
Hepting v. AT&T is a United States class action lawsuit filed in January 2006 by the Electronic Frontier Foundation against the telecommunications company AT&T, in which the EFF alleges that AT&T permitted and assisted the National Security Agency in unlawfully monitoring the communications of...
, was filed by the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
.
Justice Department response
The Los Angeles Times reported on May 14, 2006, that the U.S. Justice Department called for an end to an eavesdropping lawsuit against AT&T Corp., citing possible damage from the litigation to national security.The US government indicated in an April 28 Statement of Interest in the AT&T case, that it intends to invoke the State Secrets Privilege
State Secrets Privilege
The state secrets privilege is an evidentiary rule created by United States legal precedent. Application of the privilege results in exclusion of evidence from a legal case based solely on affidavits submitted by the government stating that court proceedings might disclose sensitive information...
in a bid to dismiss the action.
Legal status
The NSA call database was not approved by the Foreign Intelligence Surveillance Court (FISC) as required by the Foreign Intelligence Surveillance Act (FISA). The FISC was established in 1978 to secretly authorize access to call-identifying information and interception of communications of suspected foreign agents on U.S. soil. Stanford Law School's Chip PittsChip Pitts
Chip Pitts is the Board President of the Bill of Rights Defense Committee and former Chairman of Amnesty International USA.-Career:Pitts is an international attorney, human rights activist, and law educator who lectures on human rights and international business at law schools and universities...
has a good overview of the relevant legal concerns in The Washington Spectator.
Separate from the question of whether the database is illegal under FISA, one may ask whether the call detail records are covered by the privacy protection of the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
of the U.S. Constitution. This is unclear. As the U.S. has no explicit constitutional guarantee on the secrecy of correspondence
Secrecy of correspondence
The secrecy of correspondence ) or literally translated as secrecy of letters, is a fundamental legal principle enshrined in the constitutions of several European countries. It guarantees that the content of sealed letters is never revealed and letters in transit are not opened by government...
, any protection on communications is an extension by litigation of the privacy provided to "houses and papers".
This again is dependent on the flexuous requirement of a reasonable expectation of privacy.
The most relevant U.S. Supreme Court case is Smith v. Maryland
Smith v. Maryland
Smith v. Maryland, 442 U.S. 735 , was a case in which the Supreme Court of the United States held that the installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required....
.
In that case, the Court addressed pen register
Pen register
A pen register is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.The United States statutes...
s, which are mechanical devices that record the numbers dialed on a telephone; a pen register does not record call contents. The Court ruled that pen registers are not covered by the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
: "The installation and use of a pen register, [...] was not a 'search,' and no warrant was required." More generally, "This Court consistently has held that a person has no legitimate expectation of privacy in information he [...] voluntarily turns over to third parties."
The data collecting activity may however be illegal under other telecommunications privacy laws.
The Stored Communications Act
The 1986 Stored Communications ActStored Communications Act
The Stored Communications Act is a law that was enacted by the United States Congress in 1986. It is not a stand-alone law but forms part of the Electronic Communications Privacy Act; it is codified as 18 U.S.C. §§ 2701 to 2712...
(18 U.S.C. § 2701) forbids turnover of information to the government without a warrant or court order, the law gives consumers the right to sue for violations of the act.
- "A governmental entity may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication...only pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure"
However, the Stored Communications Act also authorizes phone providers to conduct electronic surveillance if the Attorney General of the United States certifies that a court order or warrant is not required and that the surveillance is required:
- [Telephone providers] are authorized to...intercept...communications or to conduct electronic surveillance...if such provider...has been provided with a certification in writing by...the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.
The Act provides for special penalties for violators when "the offense is committed...in violation of the Constitution or laws of the United States or any State."
Finally, the act allows any customer whose telephone company provided this information to sue that company in civil court for (a) actual damages to the consumer, (b) any profits by the telephone company, (c) punitive damages, and (d) attorney fees. The minimum amount a successful customer will recover under (a) and (b) is $1,000:
- "The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. If the violation is willful or intentional, the court may assess punitive damages. In the case of a successful action to enforce liability under this section, the court may assess the costs of the action, together with reasonable attorney fees determined by the court." (18 U.S.C. § 2707(c) damages)
Communications Assistance for Law Enforcement Act
President Clinton signed into law the Communications Assistance for Law Enforcement ActCommunications Assistance for Law Enforcement Act
The Communications Assistance for Law Enforcement Act is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton...
of 1994, after it was passed in both the House and Senate by a voice vote. That law is an act "to make clear a telecommunications carrier's duty to cooperate in the interception of communications for law enforcement purposes, and for other purposes." The act states that a court order isn't the only lawful way of obtaining call information, saying, "A telecommunications carrier shall ensure that any interception of communications or access to call-identifying information effected within its switching premises can be activated only in accordance with a court order or other lawful authorization."
Historical background
The FISCFisc
Under the Merovingians and Carolingians, the fisc applied to the royal demesne which paid taxes, entirely in kind, from which the royal household was meant to be supported, though it rarely was...
was inspired by the recommendations of the Church Committee
Church Committee
The Church Committee is the common term referring to the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a U.S. Senate committee chaired by Senator Frank Church in 1975. A precursor to the U.S...
, which investigated a wide range of intelligence and counter-intelligence incidents and programs, including some U.S. Army programs and the FBI program COINTELPRO
COINTELPRO
COINTELPRO was a series of covert, and often illegal, projects conducted by the United States Federal Bureau of Investigation aimed at surveilling, infiltrating, discrediting, and disrupting domestic political organizations.COINTELPRO tactics included discrediting targets through psychological...
.
In 1971, the US media reported that COINTELPRO targeted thousands of Americans during the 1960s, after several stolen FBI dossiers were passed to news agencies. The Church Committee
Church Committee
The Church Committee is the common term referring to the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a U.S. Senate committee chaired by Senator Frank Church in 1975. A precursor to the U.S...
Senate final report, which investigated COINTELPRO declared that:
Legality
The legality of blanket wiretapping has never been sustained in court, but on July 10, 2008 the US Congress capitulated to the administration in granting blanket immunity to the administration and telecom industry for potentially illegal domestic surveillance.See also
- NSA warrantless surveillance controversyNSA warrantless surveillance controversyThe NSA warrantless surveillance controversy concerns surveillance of persons within the United States during the collection of foreign intelligence by the U.S. National Security Agency as part of the war on terror...
- Information Awareness OfficeInformation Awareness OfficeThe Information Awareness Office was established by the Defense Advanced Research Projects Agency in January 2002 to bring together several DARPA projects focused on applying surveillance and information technology to track and monitor terrorists and other asymmetric threats to national security,...
- Communications Assistance For Law Enforcement ActCommunications Assistance for Law Enforcement ActThe Communications Assistance for Law Enforcement Act is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton...
- Hepting v. AT&THepting v. AT&THepting v. AT&T is a United States class action lawsuit filed in January 2006 by the Electronic Frontier Foundation against the telecommunications company AT&T, in which the EFF alleges that AT&T permitted and assisted the National Security Agency in unlawfully monitoring the communications of...
- Mass surveillanceMass surveillanceMass surveillance is the pervasive surveillance of an entire population, or a substantial fraction thereof.Modern governments today commonly perform mass surveillance of their citizens, explaining that they believe that it is necessary to protect them from dangerous groups such as terrorists,...
- ECHELONECHELONECHELON is a name used in global media and in popular culture to describe a signals intelligence collection and analysis network operated on behalf of the five signatory states to the UK–USA Security Agreement...
- Project ShamrockProject SHAMROCKProject SHAMROCK, considered to be the sister project for Project MINARET, was an espionage exercise that involved the accumulation of all telegraphic data entering into or exiting from the United States...
- Telecommunications data retentionTelecommunications data retentionIn the field of telecommunications, data retention generally refers to the storage of call detail records of telephony and internet traffic and transaction data by governments and commercial organisations...
- Cabinet noirCabinet noirCabinet noir was the name given in France to the office where the letters of suspected persons were opened and read by public officials before being forwarded to their destination...
- Room 641ARoom 641ARoom 641A is an intercept facility operated by AT&T for the U.S. National Security Agency, beginning in 2003. Room 641A is located in the SBC Communications building at 611 Folsom Street, San Francisco, three floors of which were occupied by AT&T before SBC purchased AT&T...