How Big Is Big Brother? Assembling the Pieces of the Government’s Domestic Spying Operation

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I’d like to share some speculation about the domestic surveillance efforts we’ve heard about, in bits and pieces, over the last couple of years. Here’s the thing: I’ve pulled a bunch of old articles on various aspects of these programs, and they seem to fit together.

In short, looking at stories over the last year or so by the New York Times, the Washington Post, and the latest entry from USA Today (plus a bit of my own research), I get the following picture:

After the 9/11 attacks, the federal government assembled a cross-departmental effort to comb the United States for possible terrorist activity. Using massive databases and largely untested analytical techniques, the NSA generated thousands of false “leads” which were passed to the FBI. There, agents issued thousands of secret warrants for personal information, and spent thousands of man-hours chasing the results — which were negligible. And you and I paid for it.

(I’ve run some of the details past knowledgeable colleagues and experts, and they agree that it’s plausible. I could also be wrong — the programs reported rarely have names, and they’re described only in bits and whispers, so I’m in danger of conflating separate operations. I’ll walk through the details. I’d appreciate hearing informed opinions on the matter.)

I’ll start at the beginning.

Two years ago, White House budget documents showed that the FBI in 2003 had 23,785 open terror investigations. For a country that hadn’t seen a terrorist attack in two years, that was a lot of terrorist investigations! The previous year, 2002, they had something like 12,000 open terror probes; the stat was around 9,000 in 2001.

That’s odd, isn’t it? Despite the absence of terrorism, the FBI was continuing to open thousands of new terrorism investigations every year. What to make of it?

This January, a team of New York Times reporters did a great piece on the FBI’s furious wheel-spinning in terror investigations. It seemed to answer some of my questions. Thousands of leads had turned up basically nothing, they found.

Thousands of leads? That might explain why the bureau was opening thousands of investigations. The FBI’s a stickler about its paperwork, and if each new lead doesn’t tie to an existing investigation, I’d assume a new investigation would need to be opened.

But where did those leads come from? The NSA, the Times reported:

In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the FBI in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them. . . led to dead ends or innocent Americans.

But how did the NSA generate the leads? The Times cited officials who said it came up with them “by tracing phone numbers in the United States called by suspects overseas, and then by following the domestic numbers to other numbers called.” (emphasis added.) That was all they seemed to know.

The following month, the Post‘s Gellman and two colleagues published more details on the NSA program. It has “several stages,” the trio wrote. First, “computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls” and select some for review by humans.

Gellman and his crew said those tips were tested by “intelligence officers,” who grabbed snippets of communications from the phones/e-mails in question and judged if they were suspicious or not.

But where did that “basic information” on U.S. communications come from? This time, USA Today weighed in: starting in late 2001, the NSA had bought domestic call data from major telecom companies, the paper reported. The current database holds not the “hundreds of thousands” of records that Gellman mentioned, but billions of records on the activities of an estimated 220 million U.S. customers. The data is used for “social network analysis” — looking at who talks to who, the paper said.

The NSA argues that process is legal, because “personal identifiers” like names, Social Security numbers and street addresses aren’t attached to the data, the paper concluded.

But if the FBI’s investigating these “tips,” how does it take that abstract information — a telephone number, for instance — and attach to it the name of a person an agent can track down, interview, investigate?

For numbers to land line telephones, the bureau could look up identifying information over the internet. But agents would probably need to ask the telcos directly for the “subscriber information” — the identities of cel phone and internet service subscribers fingered by the NSA.

How? The FBI had no evidence of criminal behavior associated with the NSA’s numeric “tips,” so they couldn’t get a criminal warrant for the information. The alternative, a FISA warrant, might be possible the first few hundred times — but the court would likely tire of issuing thousands of warrants when not a single one generates a successful terrorist investigation.

The USA Patriot Act opened up a third way: National Security Letters (NSLs). These secret orders for records carry the weight of a subpoena but don’t require court approval. The Patriot Act expanded NSLs’ reach, so they can be used to get records of people whom the FBI does not have reasonable suspicions about.

Last November, Bart Gellman at the Washington Post learned and published another good FBI statistic: sources told him the bureau had issued something like 30,000 NSLs that year. But in April, the Justice Department reported issuing only about 9,200 NSLs. But read the fine print of the DoJ report, and you’ll learn something: they specifically excluded NSLs requesting “subscriber information.” No justification is given for the exclusion.

Maybe all these articles are on different programs, different efforts. But they seem to fit together into a larger structure, a clever one, that — if it exists — is quite a concerted effort to skirt the Constitution while conducting a massive domestic surveillance operation.

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