Big Brother Is Listening

The NSA has the ability to eavesdrop on your communications—landlines, cell phones, e-mails, BlackBerry messages, Internet searches, and more—with ease. What happens when the technology of espionage outstrips the law’s ability to protect ordinary citizens from it?

On the first Saturday in April of 2002, the temperature in Washington, D.C., had taken a dive. Tourists were bundled up against the cold, and the cherry trees along the Tidal Basin were fast losing their blossoms to the biting winds. But a few miles to the south, in the Dowden Terrace neighborhood of Alexandria, Virginia, the chilly weather was not deterring Royce C. Lamberth, a bald and burly Texan, from mowing his lawn. He stopped only when four cars filled with FBI agents suddenly pulled up in front of his house. The agents were there not to arrest him but to request an emergency court hearing to obtain seven top-secret warrants to eavesdrop on Americans.

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As the presiding justice of the Foreign Intelligence Surveillance Court, known as the FISA court, Lamberth had become accustomed to holding the secret hearings in his living room. “My wife, Janis … has to go upstairs because she doesn’t have a top-secret clearance,” he noted in a speech to a group of Texas lawyers. “My beloved cocker spaniel, Taffy, however, remains at my side on the assumption that the surveillance targets cannot make her talk. The FBI knows Taffy well. They frequently play with her while I read some of those voluminous tomes at home.” FBI agents will even knock on the judge’s door in the middle of the night. “On the night of the bombings of the U.S. embassies in Africa, I started the first emergency hearings in my living room at 3:00 a.m.,” recalled Lamberth. “From the outset, the FBI suspected bin Laden, and the surveillances I approved that night and in the ensuing days and weeks all ended up being critical evidence at the trial in New York.

“The FISA court is probably the least-known court in Washington,” added Lamberth, who stepped down from it in 2002, at the end of his seven-year term, “but it has become one of the most important.” Conceived in the aftermath of Watergate, the FISA court traces its origins to the mid-1970s, when the Senate’s Church Committee investigated the intelligence community and the Nixon White House. The panel, chaired by Idaho Democrat Frank Church, exposed a long pattern of abuse, and its work led to bipartisan legislation aimed at preventing a president from unilaterally directing the National Security Agency or the FBI to spy on American citizens. This legislation, the 1978 Foreign Intelligence Surveillance Act, established the FISA court—made up of eleven judges handpicked by the chief justice of the United States—as a secret part of the federal judiciary. The court’s job is to decide whether to grant warrants requested by the NSA or the FBI to monitor communications of American citizens and legal residents. The law allows the government up to three days after it starts eavesdropping to ask for a warrant; every violation of FISA carries a penalty of up to five years in prison. Between May 18, 1979, when the court opened for business, until the end of 2004, it granted 18,742 NSA and FBI applications; it turned down only four outright.

Such facts worry Jonathan Turley, a George Washington University law professor who worked for the NSA as an intern while in law school in the 1980s. The FISA “courtroom,” hidden away on the top floor of the Justice Department building (because even its location is supposed to be secret), is actually a heavily protected, windowless, bug-proof installation known as a Sensitive Compartmented Information Facility, or SCIF. “When I first went into the FISA court as a lowly intern at the NSA, frankly, it started a lifetime of opposition for me to that court,” Turley recently told a group of House Democrats looking into the NSA’s domestic spying. “I was shocked with what I saw. I was convinced that the judge in that SCIF would have signed anything that we put in front of him. And I wasn’t entirely sure that he had actually read what we put in front of him. But I remember going back to my supervisor at NSA and saying, ‘That place scares the daylights out of me.’”

Lamberth bristles at any suggestion that his court routinely did the administration’s bidding. “Those who know me know the chief justice did not put me on this court because I would be a rubber stamp for whatever the executive branch was wanting to do,” he said in his speech. “I ask questions. I get into the nitty-gritty. I know exactly what is going to be done and why. And my questions are answered, in every case, before I approve an application.”

It is true that the court has been getting tougher. From 1979 through 2000, it modified only two out of 13,087 warrant requests. But from the start of the Bush administration, in 2001, the number of modifications increased to 179 out of 5,645 requests. Most of those—173—involved what the court terms “substantive modifications.”

This friction—and especially the requirement that the government show “probable cause” that the American whose communications they are seeking to target is connected in some way to a terrorist group—induced the administration to begin circumventing the court. Concerned about preventing future 9/11-style attacks, President Bush secretly decided in the fall of 2001 that the NSA would no longer be bound by FISA. Although Judge Lamberth was informed of the president’s decision, he was ordered to tell no one about it—not even his clerks or his fellow FISA-court judges.

Why the NSA Might be Listening to YOU

Contrary to popular perception, the NSA does not engage in “wiretapping”; it collects signals intelligence, or “sigint.” In contrast to the image we have from movies and television of an FBI agent placing a listening device on a target’s phone line, the NSA intercepts entire streams of electronic communications containing millions of telephone calls and e-mails. It runs the intercepts through very powerful computers that screen them for particular names, telephone numbers, Internet addresses, and trigger words or phrases. Any communications containing flagged information are forwarded by the computer for further analysis.

The NSA’s task is to listen in on the world outside American shores. During the Cold War, the principal targets were the communications lines used by the Soviet government and military—navy captains calling their ports, fighter pilots getting landing instructions, army commanders out on maneuvers, and diplomats relaying messages to the Kremlin. But now the enemy is one that communicates very little and, when it does, uses the same telecommunications network as everyone else: a complex system of wires, radio signals, and light pulses encircling and crisscrossing the globe like yarn. Picking up just the right thread, and tracing it through the maze of strands, is difficult. Sometimes a thread leads back inside the United States. An internal agency report predicted a few years ago that the NSA’s worldwide sigint operation would demand a “powerful and permanent presence” on the global telecommunications networks that carry “protected American communications.” The prediction has come true, and the NSA now monitors not only purely “foreign” communications but also “international” ones, where one end of the conversation might be in the United States. As a result, the issue at hand since the revelation last December of the NSA’s warrantless spying on American citizens is not the agency’s access to the country’s communications network—it already has access—but whether the NSA must take legal steps in preparing to target the communications of an American citizen.

It used to be that before the NSA could place the name of an American on its watch list, it had to go before a FISA-court judge and show that it had probable cause—that the facts and circumstances were such that a prudent person would think the individual was somehow connected to terrorism—in order to get a warrant. But under the new procedures put into effect by Bush’s 2001 order, warrants do not always have to be obtained, and the critical decision about whether to put an American on a watch list is left to the vague and subjective “reasonable belief” of an NSA shift supervisor. In charge of hundreds of people, the supervisor manages a wide range of sigint specialists, including signals-conversion analysts separating HBO television programs from cell-phone calls, traffic analysts sifting through massive telephone data streams looking for suspicious patterns, cryptanalysts attempting to read e-mail obscured by complex encryption algorithms, voice-language analysts translating the gist of a phone call from Dari into English, and cryptolinguists trying to unscramble a call on a secure telephone. Bypassing the FISA court has meant that the number of Americans targeted by the NSA has increased since 2001 from perhaps a dozen per year to as many as 5,000 over the last four years, knowledgeable sources told The Washington Post in February. If telephone records indicate that one of the NSA’s targets regularly dials a given telephone number, that number and any names associated with it are added to the watch lists and the communications on that line are screened by computer. Names and information on the watch lists are shared with the FBI, the CIA, the Department of Homeland Security, and foreign intelligence services. Once a person’s name is in the files, even if nothing incriminating ever turns up, it will likely remain there forever. There is no way to request removal, because there is no way to confirm that a name is on the list.

In December of 1997, in a small factory outside the southern French city of Toulouse, a salesman got caught in the NSA’s electronic web. Agents working for the NSA’s British partner, the Government Communications Headquarters, learned of a letter of credit, valued at more than $1.1 million, issued by Iran’s defense ministry to the French company Microturbo. According to NSA documents, both the NSA and the GCHQ concluded that Iran was attempting to secretly buy from Microturbo an engine for the embargoed C-802 anti-ship missile. Faxes zapping back and forth between Toulouse and Tehran were intercepted by the GCHQ, which sent them on not just to the NSA but also to the Canadian and Australian sigint agencies, as well as to Britain’s MI6. The NSA then sent the reports on the salesman making the Iranian deal to a number of CIA stations around the world, including those in Paris and Bonn, and to the U.S. Commerce Department and the Customs Service. Probably several hundred people in at least four countries were reading the company’s communications. The question, however, remained: Was Microturbo shipping a missile engine to Iran? In the end, at the insistence of the U.S. government, the French conducted a surprise inspection just before the ship carrying the mysterious crate was set to sail for Iran. Inside were legal generators, not illegal missile engines.

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