By Jennifer Granick and Thomas Earnest
Today’s Washington Post report that the National Security Agency (NSA) is gathering nearly 5 billion records a day on the whereabouts of cellphones around the world should light a match under congressional efforts to rein in mass collection of sensitive, private information about innocent Americans and others around the globe.
The Administration had denied it collects cell phone location data in connection with its collection of Americans’ phone calling records, even as the public learned that the NSA had run a program to test location tracking with real data for over two years. Meanwhile, Senator Ron Wyden (D-OR), a member of the Senate Intelligence Committee had hinted that there was more to the question of location tracking. Wyden, along with Senators Mark Udall (D-Colo.) and Barbara Mikulski (D-Md.) had introduced an amendment to the 2014 defense spending bill that would require U.S. intelligence agencies to say whether they have ever collected or made plans to collect location data for “a large number of United States persons with no known connection to suspicious activity.” The latest news adds details to public supposition that the NSA can track the movements of individuals in previously unimaginable ways. And thanks to Edward Snowden, we need not struggle to pass laws forcing the Administration to tell us if it is spying on innocent people.
Government surveillance capabilities have increased exponentially, and these novel abilities pose unprecedented challenges to civil liberties. Just a few months ago Jennifer wrote:
Detailing a police officer to follow me on the public streets is expensive. The police probably wouldn’t waste their time unless they had some reason to believe I was up to no good. It is a different matter for officers to put a GPS device on my car and track my movements around the clock for virtually no cost. Unlike a tail, police hardly need any reason to comprehensively surveil me. Basic economics says this kind of tracking is more likely to be abused. An officer who doesn’t like my religion or political beliefs, or who thinks that my son is dating her daughter, can track my car around the clock without much expense or trouble. Today, police can cheaply track any cell phone holder’s movements all day, every day, without lifting a finger, simply by obtaining information from our wireless providers. What kind of society will we live in when everyone’s information is readily available to the government at any time?
Today’s revelations show us those musings are already out of date. We are living in that panopticon world. And while we don’t know what abuses have already happened or will happen under this or a different Administration, only a patchwork of confusing regulations stands between an NSA analyst and our most private individual and social group information.
What is clear, however, is that these intimate details of innocent Americans’ daily lives are now exposed. Robert Litt, the general counsel for the Office of the Director of National Intelligence, was quoted in the Washington Post article as saying “there is no element of the intelligence community that under any authority is intentionally collecting bulk cellphone location information about cellphones in the United States.” The problem, however, is that the architecture of communications networks means “vacuum cleaner” surveillance, even when conducted abroad, will inevitably “incidentally” acquire Americans’ information, both at home and while traveling or living abroad, to the tunes of billions of records. The NSA’s training materials point to just how often U.S. cell phone data is collected. As the article explains:
“[s]ome documents in the Snowden archive suggest that acquisition of U.S. location data is routine enough to be cited as an example in training materials. In an October 2012 white paper on analytic techniques, for example, the NSA’s counterterrorism analysis unit cites two U.S.-based carriers to illustrate the challenge of correlating the travels of phone users on different mobile networks.”
Although one intelligence official responded that the training example “was poorly chosen and did not represent the program’s foreign focus,” perhaps not surprisingly the NSA’s position is that even when U.S. cellphone data is collected, such data is not constitutionally protected so the program does not trigger Fourth Amendment protections for Americans in the U.S.
Most alarmingly is that because this collection occurs most overseas is not subject to rigorous oversight. Senator Dianne Feinstein (D-CA), Chair of the Senate Intelligence Committee, has acknowledged that these overseas collection programs receive far less congressional oversight, and have fewer protections for U.S. person privacy. Senator Feinstein has said that that the Intelligence Committee can and should do more to independently verify that NSA’s operations are appropriate and that she intended to focus the committee’s attention on these overseas activities. Hopefully this latest story will speed those briefings along. After all, the NSA knows where to find Senator Feinstein.