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Is ABC News Confused Over Scope of NSA Program?:
ABC News has — or at least tries to have -- a big gotcha on the Bush Adminsitration about NSA surveillance:
  Despite pledges by President George W. Bush and American intelligence officials to the contrary, hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home, according to two former military intercept operators who worked at the giant National Security Agency (NSA) center in Fort Gordon, Georgia.
  Intercept operators allege the NSA is listening to citizens' phone calls.
  The chairman of the Senate Intelligence Committee, Jay Rockefeller (D-WV), called the allegations "extremely disturbing" and said the committee has begun its own examination. . . .
  "These were just really everyday, average, ordinary Americans who happened to be in the Middle East, in our area of intercept and happened to be making these phone calls on satellite phones," said Adrienne Kinne, a 31-year old US Army Reserves Arab linguist assigned to a special military program at the NSA's Back Hall at Fort Gordon from November 2001 to 2003.
  In testimony before Congress, then-NSA director Gen. Michael Hayden, now director of the CIA, said private conversations of Americans are not intercepted. . . .
  Asked for comment about the ABC News report and accounts of intimate and private phone calls of military officers being passed around, a US intelligence official said "all employees of the US government" should expect that their telephone conversations could be monitored as part of an effort to safeguard security and "information assurance."
  This is a noteworthy story. This particular monitoring hasn't been public before: As a commenter points out, it is probably the ECHELON program at work, or at least something close to it. And besides, how often do NSA analysts talk about their work?!? But it seems pretty clearly incorrect to say that this story suggests that Bush and the intelligence heads were lying about the Terrorist Surveillance Program the New York Times first reported on in 2005. The problem is that this appears to be a different monitoring program than the TSP.

  Recall that the TSP was controversial largely because the government appeared to be violating FISA: It violated FISA because the NSA was collecting information inside the U.S. through U.S. switches. But this program appears to be based on satellite monitoring of satellite calls from the Middle East, which FISA did not attempt to regulate until the latest FISA Amendments Act of 2008. So while it's still an important story, the link to the TSP strikes me as really weak.
EH (mail):
This means that we're now back into parsing Alberto Gonzales measured replies concerning "the program we're talking about here that the president approved" (or words to that effect, I can't seem to find a cite at the moment). I thought then that it was because there were other programs in place (secret or not), and now we find out about indeed another.
10.10.2008 1:50am
Mike& (mail):
Recall that the TSP was controversial largely because the government appeared to be violating FISA

We all have different memories..... My recollection was that the program was controversial because some Americans didn't like the idea of the government spying on them by listening to their phone calls. Maybe some guys like you got into the FISA issues. The average American (to the extent they were concerned at all) were more concerned with the big-brother-is-watching angle.

So the government said, "Hey, we're not spying on you. Just the bad guys!"

Now, well, that seems to not be the case.
10.10.2008 2:01am
Bill O'Hara (mail) (www):
It strikes me that the news organizations have most likely been getting away with inaccuracies like this since the dawn of news.

It's refreshing to see accountability (even if it is of somewhat limited scope).

When you think about it, the news providers have an awesome responsibility to the American people. They control the facts displayed, and the nature in which it is presented. It makes you initially think that since the influence of the news is so far reaching that some form of regulation is necessary. But if we had substantial regulation...

(On Que)

In Soviet Russia... regulation run the news.
10.10.2008 2:02am
OrinKerr:
Mike&,

Based on polls, the average American wasn't concerned, actually.
10.10.2008 2:04am
Bruce Hayden (mail) (www):
It should be kept in mind that it is probable that this interception was completely legal under FISA at the time.
10.10.2008 2:07am
PC:
In Soviet Russia...

It's funny to bring up Soviet Russia in a thread about the broad based monitoring of citizens' phone calls.
10.10.2008 2:28am
The North Coast Curmudgeon (mail):
Way back in the day, as a lowly member of the CSS/NSA, we experienced the intercept of our telephone calls when we used/abused the Autovon and in the case of us folks way up in Alaska, the White Alice Tropo system. When we used government communications equipment, lines and links, we were monitored by what were and, I believe still are called COMSEC operators. Communications Security operators monitor our own comms to insure there are no security violations. This has been going on since before WWII, it's not news and as the man said, "all employees of the US government" should expect that their telephone conversations could be monitored as part of an effort to safeguard security and "information assurance."
10.10.2008 2:38am
glenalxndr:
Signal intelligence personnel — which Adrienne Kinne was — are most certainly not at liberty to publicly disclose the details of highly classified intercepts.

Her personal opinion as to whether the intercepts were legal or proper are irrelevant. She is a sergeant in the US Army and subject to the UCMJ. Revealing top secret/compartmentalized intelligence while a uniformed member of the Armed Services isn't "whistle blowing" — it's treason.

Kinne has been an outspoken activist against the Iraq War for several years. Although she still works for the military (as a research health science specialist for the VA Medical Center in White River Junction, VT), she is a highly visible member of Iraq Veterans Against the War, and pals around with Cindy Sheehan.

Maybe she has forgotten her oath since she is no longer on active duty?

Never mind that anyone using DSN facilities (officially or privately) has no expectation of privacy, as all are on notice that all communications are monitored.
10.10.2008 2:40am
Windycityatty:

Let's see...unchecked authority to eavesdrop with little to no oversight. No, nothing can go wrong here. Nothing at all.

I hope you delve further into this story Prof. Kerr. Many people for years - well at least since Gonzalez kept qualifying his testimony to various congressional committee's "with respect to the program we are discussing today" were curious what those other programs alluded to by implication were.

And I think its important to note that according to Glenn Greenwald and James Bamford - it wasnt just government employees. It was international aid workers and other civilians. And it was ALL conversations - and they weren't simply "monitored", but also transcribed. Every single one of them.

What a colossal waste of time and money. Mr Greenwald seems to think if these revelations are true, that thousands of felonies may have been committed by the executive branch and others. He also makes some other relevant points with respect to how finding the needle in the haystack actually becomes harder when the haystack is way bigger than it needs to be (thus making it less likely to actually catch a terrorist and making us less safe).

I know you will likely respond that you wont make a judgment as to whether this activity is criminal (or would have been at the time it was carried out) until there is solid evidence; but since the government operates in total secrecy in this area and does everything it can to prevent any light to reach this subject - whistleblowers are going to likely be the only sources of that evidence.

I think it also relevant to note that Rockefeller investigating this is a total joke. He is in CYA mode since he and others in Congress are complicit and covered their own tracks - and the tracks of those who contribute large sums of money to them from the corporate world - with the FISA immunity. The rule of law is losing to the war on terror.

You note its an important story. I disagree. It WAS an important story. In 2005 when anybody with half a libertarian bone in their body KNEW that the eavesdropping that was actually going on was much much more than what the administration and others let on. There is a time to sit on the fence until more information (that may or may not ever arrive) comes out and a time to trust your instincts and speak up. With all due respect, you sat on the fence.
10.10.2008 2:41am
MS (mail):
This reminds me of the U.S. attorney firings. No one doubts that the president has legal authority to be a jerk. But he's still a jerk.
10.10.2008 2:48am
OrinKerr:
WindyCityAtty,

I don't get it. We've known about ECHELON for years, and I've had lots of post on what the "other programs" are. What exactly is it that you think I did wrong?

I should also add that claiming that "Glenn Greenwald says" something about surveillance law is about as credible as "David Addington says so" for serious lawyers of these topics. FISA doesn''t cover satellite monitoring of people outside the US -- or rather, it didn't at the time. And if there was consent obtained, as some are suggesting, then that's a reason no warrant was required even if FISA covered it.
10.10.2008 3:15am
Bill O'Hara (mail) (www):

In Soviet Russia...

It's funny to bring up Soviet Russia in a thread about the broad based monitoring of citizens' phone calls.


Hehe, fair enough. Clearly, I'm new to VC. I thought the main thrust of the comments would be about the inaccuracies of ABC (as I believe that's what the post was about), not about the eavesdropping, even though that most likely is the most relevant topic to a libertarian.
10.10.2008 3:24am
Mike& (mail):
Based on polls, the average American wasn't concerned, actually.

Some were. But, yeah, I noted: "The average American (to the extent they were concerned at all) were more concerned with the big-brother-is-watching angle."

Your point seemed to be that ABC was distorting the facts, "Recall that the TSP was controversial largely because the government appeared to be violating FISA."

So I don't think you make your case. Again, to the extent Americans were bothered by it, the FISA issue was much less worrisome than than the big-brother-is-watching issue.

Now how many people really cared about either issue? Not many. That's something I will willingly concede.

But if you're going to claim that ABC news twisted the facts; I think you need more than what you have in your post to prove it.
10.10.2008 3:42am
Daryl Herbert (www):
It's a good thing we have whistleblowers ethical enough to bring stories like this to the attention of the media.

Either that, or it's just another disloyal government employee sabotaging our national security to help get Obama elected. If he's willing to sabotage our national security to get Obama elected, imagine what sort of laws he'll be willing to break once Obama is in power.
10.10.2008 4:05am
Tatil:
Prof. Kerr,

I thought once the suspect outside the US made a call into the US, the law dictated that the interception had to be suspended unless a wiretap authorization was supplied by FISA court. NSA could keep on listening for 48 hours before obtaining the court order in cases of emergency. Why does it matter whether a satellite phone or a landline is used, as long as a call is made into a US telephone number? Besides, we used to route our regular international phone calls through satellites before the advent of internet related technologies. Could you clarify a bit more? Thanks...
10.10.2008 4:20am
OrinKerr:
Mike,

You're missing the point of the post, I believe. The story begins, " Despite pledges by President George W. Bush and American intelligence officials to the contrary, hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home."

That sentence is just false: There was no pledge "to the contrary." The point of my post is that this claim is false, because we're dealing with two different programs. I think I made that case. I only mentioned the point about illegality to bring out the point that these were two different programs: one likely illegal, the other apparently legal.
10.10.2008 4:24am
OrinKerr:
Tatil,

FISA was written to exclude this sort of monitoring: It matters because the law was written to make it matter. Why was it written that way? The best evidence is that the NSA wanted to do this sort of monitoring, and Congress didn't want to stop them.
10.10.2008 4:26am
ichthyophagous (mail):
How we know the listening was actually part of an officially established program? Or was this perhaps a case of employees goofing on the job? IRS employees engage in a lot of unauthorized peeking also.
10.10.2008 6:25am
Dartmouth1:
FISA does not cover satellite surveillance...Therefore, how is this a violation of the FISA Act?
10.10.2008 7:20am
common sense (www):
The CNN version of this story more clearly pointed out that this was mainly calls from Iraq. First, why are they using satellite phones to call home? When I was there, that was a big no-no. Second, it was common knowledge, and indeed posted above every phone bank, that all calls home were subject to monitoring. What is the problem here?
10.10.2008 7:38am
cboldt (mail):
-- But this program appears to be based on satellite monitoring of satellite calls from the Middle East, which FISA did not attempt to regulate until the latest FISA Amendments Act of 2008. --

.

How does one construe the relevant definitions in FISA-1978 in order to make true, "FISA did not attempt to regulate monitoring of satellite calls from the Middle East," as a blanket? The category, "satellite calls from the Middle East" covers a variety of communications.

.

50 USC 1801 (f)(1-2)
(f) "Electronic surveillance" means -
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers ...

.

If the interception targeted a US person located in the US, then wireless transmissions were covered. That is, the means of transmitting the message (satellite) did not result in falling outside of the scope of "electronic surveillance."

.

With regard to untargeted individuals, my take on the argument that "FISA did not cover satellite calls" is that it [the argument] hinges on making a distinction between "land" and "satellite" transmission, based on the mode of transmitting the intercontinental leg. A call that the utility routed through an undersea cable is treated differently, under the law, from a call routed via satellite. I find that particular distinction to be troublesome, in that a caller has no way to control the categorization of a communication that is mixed land/satellite mode. Is a communication that is in any part wireless (e.g., wireless handset at home) no longer a wire transmission? Is a person using a land-line telephone or internet connection engaging in a radio communications? If the government construes the above to conclude that a land line call becomes a radio call when the utility transmits via satellite, then to the affected person's view (that is, the caller), the law has the infirmity of being indefinite.

.
Not that the calls couldn't be intercepted, just that they weren't to be intercepted by facilities located in the US, regardless of the mode of transmission / interception. As a practical matter, I'm not sure the utility-driven satellite/land distinction came into legal play, because the snooper can avoid engaging in "electronic surveillance" under 1801(f)2), simply by performing the acquisition outside of the US. If the satellite interception/reception (or cable interception/reception) was taking place out of the US, then it's not electronic surveillance.

.

The major broadening of "not electronic surveillance" changes that FISA-2008 worked, as I see it, is that the capture of international communications, regardless of mode of transmission (cable, fiber or satellite), can now occur inside the United States. The only way the interception and acquisition of an international call becomes "electronic surveillance" is if the government has an individualized suspicion before it performs the interception.
10.10.2008 9:56am
Philistine (mail):
What seems more of an issue to me is the "passing around" of salacious intercepts to amuse those intercepting calls.

Assuming FISA applied, would this be a violation of 50 USCA Sec. 1806(a)?


Information acquired from an electronic surveillance conducted pursuant to this subchapter concerning any United States person may be used and disclosed by Federal officers and employees without the consent of the United States person only in accordance with the minimization procedures required by this subchapter. No otherwise privileged communication obtained in accordance with, or in violation of, the provisions of this subchapter shall lose its privileged character. No information acquired from an electronic surveillance pursuant to this subchapter may be used or disclosed by Federal officers or employees except for lawful purposes.


The disclosure to your buddies does not appear to be a "lawful purpose", nor does it appear to comply with the minimization requirements.

Or is disclosure to other operators not covered?
10.10.2008 10:07am
OrinKerr:
cboldt,

The story does not claim anyone in the US was intentionally targeted or that the surveillance occcured in the US. It claims only that people in the Middle East were intentionally targeted using satellites, presumably satellites located over the middle east. Thus FISA doesn't apply.
10.10.2008 10:18am
Oren:
Orin, you are of course correct in the technical sense of the word "targeted". Nevertheless, I would feel colloquially "targeted" if the gov't listened in on my conversations, even if it they were technically targeting the other end.

More reasonable language would consider anyone whose communications are intercepted as "targeted".
10.10.2008 10:46am
Tom Tildrum:
I thought mail to and from members of the military on active service was routinely reviewed. Remember Yossarian censoring mail in Catch-22? Is that no longer done, or was it always fiction?

Is there some reason why telephone calls would be expected to be different?
10.10.2008 11:00am
Anderson (mail):
Thanks for the post -- the feds have so many dubious eavesdropping programs, I can't keep 'em straight.

Marty Lederman also has a post on this issue, as you'd expect. Worth a look as always.
10.10.2008 11:18am
Lawyer:
Does nobody care about the current pandemic that is the voter fradu/ACORN scandal?
10.10.2008 11:29am
John T. (mail):
The disclosure to your buddies does not appear to be a "lawful purpose", nor does it appear to comply with the minimization requirements.


Some intercept of US person satellite calls is inevitable if you're listening in at all. You don't know who's on the other end until you intercept and decrypt the call. If you target satellite phone calls in the Middle East at all, you can't avoid picking up the signals of US persons. This has been known for a long time. That's why the minimization procedures exist. It's true, Orin, that they weren't covered by FISA, but the minimization procedures mentioned in the latest FISA updates reference the ones already existing via executive order since Reagan. The relevant order is called USSID 18. Among other things, it requires disposing of US person calls within a short time limit and finding various ways to minimize the intrusion and take the operator out the loop if possible, depending on the technology, etc., etc.

Disclosure to your buddies is obviously a violation. Perhaps one that we should expect on the same level as the viewing of famous peoples' passport files that's occured by ordinary employees. But it, even if not part of a larger program, is something that should be severely punished.
10.10.2008 11:50am
Richard Aubrey (mail):
Mail used to be censored. My father, who censored his platoon's mail, said it should have been sent to the Germans who would have been terrified at the huge slaughters they'd been suffering.
But not, I think, since Korea.
Not in Viet Nam, certainly, and not since.
Some surveillance of the results--"You said WHAT???"--might result in some action, but not prior, afaik.
10.10.2008 12:33pm
Whining is really hard work:
Yeah, that ACORN stuff is pretty bad. Don't they get paid on the number of forms submitted? Not a good incentive for honest enrollment, is it...
10.10.2008 12:56pm
josh:
Thanks Anderson for the link to Lederman's analysis.

Prof. Kerr, due to your regularly honest posts on these issues, I'm inclined to think ABC worded its lede incorrectly. But could you address Prof. Lederman's analysis that eve if this "new" type of surveillance did not violate FISA, it may have violated an exitsing executive order and the 4th Amendment?

I do recall in one of your many posts way back when that you deferred on the 4th A analysis because of facts not known. It seems, as Lederman points out, that while ABC got its lede wrong, there's still a story here with respect to the 4th A, no?
10.10.2008 2:32pm
OrinKerr:
Josh,

No, I don't think so. Marty is clearly wrong about monitoring on government phones, which it seems that much of this was: Individuals would have received notice that the calls were monitored, meaning no warrant was required. Second, several court of appeals have held there are no Fourth Amendment rights in cordless phone calls, which could also apply to satellite phone calls. Finally, that bin Laden decision was narrow and just one district court decision: even taking away the first two points I made, it seems pretty aggressive to put so much weight on it. So it seems pretty unlikely to me that this violated the Fourth Amendment.
10.10.2008 2:45pm
josh:
'ppreciate it. I usually defend the "MSM" from what I find to be baseless accusations, but you seem to be right on this one (conceding that I am ill-informed on the issues Prof Lederman addressed and you just addressed in response).
10.10.2008 2:56pm