Is That New NSA Story Accurate?

June 16, 2013 7:21 a.m.

They say money talks and bullshit walks. But, in fact, as we know, bullshit runs and fairly fast and frequently faster than something more accurate trying to catch up with it. Which brings me to this article published by CNET that reports that in a classified briefing the NSA admitted that its analysts are able to move on from metadata analysis to actually listening to the contents of a US/domestic phone call based not on a warrant or national security letter but simply their own judgement that it’s worth listening to.

The charge is, to put it mildly, an explosive one. But is it true? I was first inclined to take the report seriously as it appears in CNET. But things started to change after watching the video of the exchange the report is based on. To explain it as simply as possible, the video is an exchange in congressional testimony between New York Congressman Jerry Nadler (D) and FBI Chief Robert Mueller. In the exchange, Nadler tells Mueller that what he (Mueller) has just told him was contradicted by what he, Nadler, heard in a classified briefing on NSA surveillance. And what the CNET article claims Nadler is saying is that the NSA says its analysts don’t need a warrant to go ahead and listen to the contents of domestic phone calls.

But is that what he’s saying? The exchange this is all based on is actually very ambiguous. It’s not clear that Mueller and Nadler are understanding each other or that McCullagh is understanding either of them. (That doesn’t even get into whether Nadler correctly understood what he heard in the NSA briefing, though Nadler’s a pretty sharp guy so I wouldn’t assume he’s confused.) When I watched the video it wasn’t clear whether Nadler was clear on what he was saying or more importantly whether the author of the piece Declan McCullagh understood what was even being discussed in the exchange. Significantly, the piece was published without waiting to get comment or confirmation from Nadler that McCullagh correctly interpreted what he was saying. Here’s the video.

I’ve discussed this with a number of people who know the intricacies of the technology and policy issues at play here much better than I do and I have not found anyone who’s confident that McCullagh understood what these two guys are talking about.

Here’s one critique assuming the two are actually talking about metadata. Here’s another which argues that Nadler is saying something like what McCullagh is saying but that McCullagh doesn’t seem to grasp how the law functions in this case that the ‘admission’ is actually not news.

What’s difficult about making sense of this story is that it’s hard to say it’s ‘right’ or ‘wrong’ because it makes a conclusive claim based on a highly ambiguous exchange (in which it’s not even clear that the two people talking are actually understanding each other) without even managing to ask the parties to the exchange what they meant. The central claim of the piece could definitely be accurate – it’s just that the piece has no clear evidence that it is.

In that sense I don’t think we can say that the article is wrong, only that based on the evidence proffered in the piece there’s no reason to think it’s accurate.

The most probative information would be to hear from Nadler precisely what he meant. As far as I can tell, no one’s gotten his response to this yet. And despite numerous problems being raised with the piece, CNET does not appear to have addressed any of the problems raised with the piece.

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