FOIA'ed Documents Show NSA Abuse Of Pen Register Statutes To Collect Content

from the subpoena-an-inch,-take-a-mile dept

New FISA court documents have been handed over to the EFF as the result of its long-running FOIA lawsuit. The new pile of documents is, unfortunately, very heavily-redacted, forcing readers to extrapolate a lot from the missing data.

One of the few released FISA court docs leaving anything legible concerns the NSA's use of pen register/trap-and-trace orders to collect content, rather than just dialed phone numbers. The NSA (along with the FBI) has been admonished for its abuse of these orders before, thanks to its insistence any numbers dialed are fair game, even if they could be construed as partial contents of calls -- i.e., communications.

What the NSA liked to scoop up were "post cut through dialing digits" -- any numbers dialed after the phone number itself. These numbers could contain such things as credit card numbers, menu selections for automated services, and other information that could not be considered a dialed phone number.

The FISA court put an end to this, noting (all the way back in 2006) the government's complaints it couldn't segregate phone numbers from post cut through digits were laughable. It cites a magistrate judge's denial of the government's PR/TT order for these very reasons and asks the government to explain what actions it had taken in response to this denial.

On July 19, 2006, the Honorable Stephen WM Smith denied a government application to acquire post-cut-through digits in a criminal investigation, expressly rejecting the government's argument that 18 U.S.C.3121(c) implicitly authorizes the acquisition of contents using a pen register/trap and trace device, given the current state of filtering technology In re Application of the United States for an Order Authorizing (1) Installation and Use of a Pen Register and Trap and Trace Device or Process. (2) Access to Customer Records, and Cell Phone Tracking, F.Supp.2d 2006 WL 2033877, at 6, 9 (SD. Texas, 2006). Accordingly, the government is ordered to submit a written brief to the Court, no later than [redacted] discussing how, if at all, Magistrate Judge Smith's opinion affects the government's analysis of this issue as set forth in its Memorandum.

It also should be noted -- as the EFF's Aaron Mackey points out -- the NSA spent nearly eight years collecting internet metadata with pen register/trap-and-trace orders before being forced to give up this bastardization of this zero oversight collection method, which was written specifically to target dialed phone numbers only.

Ultimately, the EFF is disappointed with this document dump and will likely challenge the NSA's withholding of 12 requested documents in full. The NSA is supposed to deliver another set of documents from this lawsuit before the end of the year. But it's falling behind on its other obligations. The USA Freedom Act mandated timely declassification of FISA court opinions, but the ODNI (Office of the Director of National Intelligence) appears to be moving forward with as little transparency as possible. Twelve documents withheld, eleven documents delivered composed mainly of blacked-out text. Hopefully, we'll have more to work with when the NSA delivers its next batch sometime in the next couple of months.

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Filed Under: fisa, foia, nsa, pen register, surveillance