Had the reporters known the truth, they may not have contextualized the story with language about an NSA surveillance effort that is "tightly controlled or limited in scope," and they certainly wouldn't have included the highly misleading line from the official who implied that location data wasn't collected because the resources required didn't justify it. When he said that, massive resources were being expended to collect location data!

Misleading Americans on Capitol Hill

On June 18, General Keith Alexander, the head of the NSA, spoke publicly about the Snowden revelations for the first time. He complained that the debate about NSA surveillance was being fueled "by incomplete and inaccurate information, with little context provided on the purpose of these programs, their value to our national security and that of our allies, and the protections that are in place," implying that he would provide a much needed corrective. Addressing the purpose of his testimony before Congress that day, he said that "we will provide additional detail and context on these two programs to help inform that debate," and soon gave the floor to Deputy Attorney General James Cole.

Said Cole:

Let me go through a few of the features of this. First of all, it's metadata. These are phone records. These—this is just like what you would get in your own phone bill. It is the number that was dialed from, the number that was dialed to, the date and the length of time. That's all we get under 215. We do not get the identity of any of the parties to this phone call. We don't get any cell site or location information as to where any of these phones were located. And, most importantly, and you're probably going to hear this about 100 times today, we don't get any content under this. We don't listen in on anybody's calls under this program at all.

Again, this is technically accurate. Cole limited his remarks to data collected under Section 215. At the same time, the context of his testimony was a nation and a legislature upset at revelations of sweeping NSA spying that they didn't know about—and a desire to clarify just how far the secret agency goes in its surveillance. In order to obscure those questions, Alexander and Cole proceed as if everyone is gathered because of an intense and narrow focus on Section 215, which just happened to be the first program that the Snowden leaks made public. The average American watching the hearing on television or hearing a soundbite on the news would understandably conclude from the words spoken that the NSA was not collecting Americans' cell-phone location data.

Misleading Words From the Department of Justice

On June 24, the Los Angeles Times headline seemed definitive enough: "NSA does not collect cellphone location data, officials say." Here's how it begins:

The U.S. Justice Department has told a court in Florida that the government does not secretly track the location of Americans' cellphones as part of its massive phone surveillance dragnet, but asking experts to believe that assertion has proved to be another matter. The basic privacy question raised in the recent revelations—has the government been tracking American phone users?—remains muddied by a vaguely worded, top-secret court order and an ensuing series of carefully worded denials. The Justice Department's response—declining to release secret tracking data on phone locations because it purportedly doesn't have it—almost immediately raised new questions.

DOJ was forced to address the question when a Florida attorney sought cell-phone location data for a client, arguing it would prove his innocence in a criminal case:

His client's phone company, MetroPCS, didn't keep phone location data dating back to 2010, so Louis, citing the leaked court order, said the NSA might be the only entity that still held the old records and thus had an obligation to turn them over. The government's response to Lewis' request, filed with the court last Wednesday, says the NSA does not have such a capability: The agency didn't collect location data under the phone surveillance program, so there were no records to turn over, the court filing said. "The program described in the classified [Foreign Intelligence Surveillance Act court] order cited by the defense did not acquire such data," the filing stated, adding that "the government has no reason to believe" location data were being held by the government that could be turned over for the criminal case.

Once again, the government statement was sufficiently misleading to cause the newspaper to inadvertently misrepresent the truth in its paraphrase: The government didn't state that location data wasn't being held, just that it wasn't being held under Section 215. DOJ was able to sidestep the request in court in part because the Florida lawyer cited the wrong program when asking for the records. And once again, Americans reading about the story and as yet unaware of programs beyond Section 215 thought, maybe our location date is secure after all.