Distortion

Uh, wait a minute. The latest fear-mongering story about the NSA appears to be bogus. Here’s the story at CNET: NSA Admits Listening to U.S. Phone Calls Without Warrants | Politics and Law - CNET News.

Sounds pretty inflammatory, right?

The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls. Rep. Jerrold Nadler, a New York Democrat, disclosed this week that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed “simply based on an analyst deciding that.” If the NSA wants “to listen to the phone,” an analyst’s decision is sufficient, without any other legal authorization required, Nadler said he learned. “I was rather startled,” said Nadler, an attorney and congressman who serves on the House Judiciary committee. Not only does this disclosure shed more light on how the NSA’s formidable eavesdropping apparatus works domestically it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.

Really, “eavesdrop on phone calls?” And the NSA admitted it?

If you read this carefully, you’ll notice that the source for this “admission” is not the NSA at all — it’s second-hand information from Rep. Jerrold Nadler (D-NY). And Nadler himself never even says he heard it from the NSA.

Here’s how writer Declan McCullagh describes the exchange between Nadler and FBI director Richard Mueller that led to his shocking headline:

Rep. Nadler’s disclosure that NSA analysts can listen to calls without court orders came during a House Judiciary hearing on Thursday that included FBI director Robert Mueller as a witness. Mueller initially sought to downplay concerns about NSA surveillance by claiming that, to listen to a phone call, the government would need to seek “a special, a particularized order from the FISA court directed at that particular phone of that particular individual.” Is information about that procedure “classified in any way?” Nadler asked. “I don’t think so,” Mueller replied. “Then I can say the following,” Nadler said. “We heard precisely the opposite at the briefing the other day. We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that…In other words, what you just said is incorrect. So there’s a conflict.”

The key quote here is, “We heard precisely that you could get the specific information from that telephone.” Notice: Nadler did not say they could listen to the phone call, he said “get the specific information.”

Here’s the actual video clip of the full exchange from C-Span, which explains the discrepancy. I’ve set it to start at about 46:00 into the hearing, right at the point where the exchange between Mueller and Nadler begins:

Video

There’s no mention of it in McCullagh’s article, but this entire discussion was about metadata. They explicitly say this several times, using the word “metadata.” And metadata is not “listening to phone calls,” it’s the equivalent of looking at a telephone bill. That’s why Mueller begins (in the clip above) by saying that the Supreme Court has ruled that this kind of data is not protected by the Fourth Amendment.

The bottom line: this CNET article and headline are extremely misleading. There is no evidence here to support the hyperbolic claims made by their article.

A transcript of the section in question, courtesy of LGF contributor simoom:

Mueller: As we all know, these particular records are not covered by the Fourth Amendment. The Supreme Court has held that to be the case. And secondly, the determination as to the legality and that standard has been addressed by the FISA Court, in the affirmative, to support this particular program.

[someone introduces Nadler]

Nadler: Let me ask you the following. Under section 215, and I’d also like to associate myself with the remarks that a dragnet subpoena for every telephone record, etc — every e-mail record, though I know they don’t do that anymore, though they could again tomorrow, and they did do it — certainly makes a mockery of the relevance standard in section 215. If everything in the world is relevant then there’s no meaning to that word. Some of us offered amendments to narrow that several years ago and in retrospect maybe we should have adopted those amendments. But that’s no excuse for a misinterpretation of relevance to the point that there is no such meaning to the word.

Now secondly, under section 215 if you’ve gotten information from metadata, and you as a result of that thing that, “gee, this phone number, 873-whatever, looks suspicious and we aught to actually get the contents of that phone. Do you need a new specific warrant?

Mueller: You need at least a national security letter. All you have is a telephone number. You do not have subscriber information, so if you need the subscriber information you would need to probably get a National Security Letter to get that subscriber information. And then if you wanted to do more —

Nadler: If you wanted to listen to the phone —

Mueller: Then you would have to get a special, a particularized order from the FISA Court directed at that particular phone and that particular individual.

Nadler: Now is the answer you just gave me classified?

Mueller: Is what?

Nadler: Is the answer you just gave me classified in any way?

Mueller: I don’t think so.

Nadler: OK, then I can say the following. We heard precisely the opposite at the briefing the other day. We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that and you didn’t need a new warrant. Other-words is what you just said is incorrect. So there’s a conflict.

Mueller: I’m not sure it’s the answer to the same question. I’m sorry, I didn’t mean to interrupt.

Nadler: Well I asked the question both times and I think it’s the same question, so maybe you better go back and check, because someone was incorrect.

Mueller: I will do that. That is my understanding of the process.

Nadler: OK, I don’t question your understanding. It was always my understanding. And I was rather startled the other day and I wanted to take this opportunity to —

Mueller: I’d be happy to clarify it.

Nadler: Thank you.