Such events are central to the current debate involving the potential harm caused by the NSA’s warrantless domestic eavesdropping operation. Even though the salesman did nothing wrong, his name made its way into the computers and onto the watch lists of intelligence, customs, and other secret and law-enforcement organizations around the world. Maybe nothing will come of it. Maybe the next time he tries to enter the United States or Britain he will be denied, without explanation. Maybe he will be arrested. As the domestic eavesdropping program continues to grow, such uncertainties may plague innocent Americans whose names are being run through the supercomputers even though the NSA has not met the established legal standard for a search warrant. It is only when such citizens are turned down while applying for a job with the federal government—or refused when seeking a Small Business Administration loan, or turned back by British customs agents when flying to London on vacation, or even placed on a “no-fly” list—that they will realize that something is very wrong. But they will never learn why.
More than seventy-five years ago, Supreme Court Justice Louis Brandeis envisioned a day when technology would overtake the law. He wrote:
Subtler and more far-reaching means of invading privacy have become available to the government … The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home … Can it be that the Constitution affords no protection against such invasions of individual security?
Brandeis went on to answer his own question, quoting from an earlier Supreme Court decision, Boyd v. U.S. (1886): “It is not the breaking of his doors, and the rummaging of his drawers that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property.”
Today, the NSA’s capability to eavesdrop is far beyond anything ever dreamed of by Justice Brandeis. With the digital revolution came an explosion in eavesdropping technology; the NSA today has the ability to scan tens of millions of electronic communications—e-mails, faxes, instant messages, Web searches, and phone calls—every hour. General Michael Hayden, director of the NSA from 1999 to 2005 and now principal deputy director of national intelligence, noted in 2002 that during the 1990s, e-communications “surpassed traditional communications. That is the same decade when mobile cell phones increased from 16 million to 741 million—an increase of nearly 50 times. That is the same decade when Internet users went from about 4 million to 361 million—an increase of over 90 times. Half as many land lines were laid in the last six years of the 1990s as in the whole previous history of the world. In that same decade of the 1990s, international telephone traffic went from 38 billion minutes to over 100 billion. This year, the world’s population will spend over 180 billion minutes on the phone in international calls alone.”
Intercepting communications carried by satellite is fairly simple for the NSA. The key conduits are the thirty Intelsat satellites that ring the Earth, 22,300 miles above the equator. Many communications from Europe, Africa, and the Middle East to the eastern half of the United States, for example, are first uplinked to an Intelsat satellite and then downlinked to AT&T’s ground station in Etam, West Virginia. From there, phone calls, e-mails, and other communications travel on to various parts of the country. To listen in on that rich stream of information, the NSA built a listening post fifty miles away, near Sugar Grove, West Virginia. Consisting of a group of very large parabolic dishes, hidden in a heavily forested valley and surrounded by tall hills, the post can easily intercept the millions of calls and messages flowing every hour into the Etam station. On the West Coast, high on the edge of a bluff overlooking the Okanogan River, near Brewster, Washington, is the major commercial downlink for communications to and from Asia and the Pacific. Consisting of forty parabolic dishes, it is reportedly the largest satellite antenna farm in the Western Hemisphere. A hundred miles to the south, collecting every whisper, is the NSA’s western listening post, hidden away on a 324,000-acre Army base in Yakima, Washington. The NSA posts collect the international traffic beamed down from the Intelsat satellites over the Atlantic and Pacific. But each also has a number of dishes that appear to be directed at domestic telecommunications satellites.
Until recently, most international telecommunications flowing into and out of the United States traveled by satellite. But faster, more reliable undersea fiber-optic cables have taken the lead, and the NSA has adapted. The agency taps into the cables that don’t reach our shores by using specially designed submarines, such as the USS Jimmy Carter, to attach a complex “bug” to the cable itself. This is difficult, however, and undersea taps are short-lived because the batteries last only a limited time. The fiber-optic transmission cables that enter the United States from Europe and Asia can be tapped more easily at the landing stations where they come ashore. With the acquiescence of the telecommunications companies, it is possible for the NSA to attach monitoring equipment inside the landing station and then run a buried encrypted fiber-optic “backhaul” line to NSA headquarters at Fort Meade, Maryland, where the river of data can be analyzed by supercomputers in near real time.
Tapping into the fiber-optic network that carries the nation’s Internet communications is even easier, as much of the information transits through just a few “switches” (similar to the satellite downlinks). Among the busiest are MAE East (Metropolitan Area Ethernet), in Vienna, Virginia, and MAE West, in San Jose, California, both owned by Verizon. By accessing the switch, the NSA can see who’s e-mailing with whom over the Internet cables and can copy entire messages. Last September, the Federal Communications Commission further opened the door for the agency. The 1994 Communications Assistance for Law Enforcement Act required telephone companies to rewire their networks to provide the government with secret access. The FCC has now extended the act to cover “any type of broadband Internet access service” and the new Internet phone services—and ordered company officials never to discuss any aspect of the program.