Shortly after the earliest articles sourced to Edward Snowden appeared, Americans newly aware of the cell phones in their pockets started wondering: Would the NSA ever collect the location data that all of us generate? The possibility proved worrisome to the public and privacy experts alike. A surveillance state that routinely tracked our movement would feel dystopian and enable abuse, as various TV, web, and print commentators noted.
Even Congress seemed to be concerned. A letter signed by 26 senators declared that NSA bulk collection of phone records has a significant impact on privacy.* "This is particularly true if these records are collected in a manner that includes cell phone locational data, effectively turning Americans' cell phones into tracking devices," it stated. "Has the NSA collected or made plans to collect Americans’ cell-site location data in bulk?"
Now we know that the answer is yes.
"The National Security Agency is gathering nearly 5 billion records a day on the whereabouts of cellphones around the world," the Washington Post reported on December 4, noting "a vast database that stores information about the locations of at least hundreds of millions of devices." Many Americans are affected by the tactic (emphasis added throughout):
The NSA does not target Americans’ location data by design, but the agency acquires a substantial amount of information on the whereabouts of domestic cellphones “incidentally,” a legal term that connotes a foreseeable but not deliberate result.
One senior collection manager, speaking on the condition of anonymity but with permission from the NSA, said “we are getting vast volumes” of location data from around the world by tapping into the cables that connect mobile networks globally and that serve U.S. cellphones as well as foreign ones. Additionally, data are often collected from the tens of millions of Americans who travel abroad with their cellphones every year.
A subsequent Post article notes that the NSA is also "using commercially gathered information to help it locate mobile devices around the world, the documents show," explaining, "many smartphone apps running on iPhones and Android devices, and the Apple and Google operating systems themselves, track the location of each device, often without a clear warning to the phone's owner." Back in October, we also found out that the NSA had "once tested whether it could track Americans' cell phone locations," and that in doing so, the secretive agency even acquired some "samples" of location data, which it may still have.
Put simply, everyone who feared that the NSA collects location data on Americans was correct. But they didn't learn that back when they expressed those fears.
Quite the contrary. On multiple occasions, Obama Administration officials spoke about the collection of cell-phone location data in ways that were often technically accurate but wildly deceptive. In so doing, they succeeded in confusing the surveillance debate and creating the inaccurate impression that location data wasn't being collected.
This is a review of their deceptions.
Fooling the Wall Street Journal
The National Security Agency sweeps up data on millions of cellphones and Internet communications under secret court orders. But as it mounts a rigorous defense of its surveillance, the agency has disclosed new details that portray its efforts as tightly controlled and limited in scope, while successful in thwarting potential plots. On Sunday, officials said that though the NSA is authorized to collect "geolocational" information that can pinpoint the location of callers, it chooses not to. A secret court order that was made public earlier this month directed Verizon Communications Inc. to turn over to the NSA "comprehensive communications routing information." Under this authority, NSA would have the ability to collect data on locations of calls placed or received, a U.S. official said Sunday.
Other major phone companies including AT&T and Sprint also operate under similar orders, former officials say.
As part of this program, however, the NSA chooses not to collect such data as the nearest cellphone tower used to place or receive a mobile call, U.S. officials said. In a statement released this weekend, the Office of the Director of National Intelligence said the NSA program doesn't collect "any cell phone locational information." Such information has been found to be of value to criminal investigators, who can use it to link suspects with crime scenes. However, the U.S. official said the data doesn't provide sufficient intelligence value to justify the resources that would be required to use it.
Misleading Americans on Capitol Hill
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.
Misleading Words From the Department of Justice
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.
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.
James Clapper Misleads in a Letter
On July 26, Director of National Intelligence James Clapper wrote a letter to Senator Ron Wyden in which he addressed the civil-libertarian's concerns, including questions about the NSA tracking Americans' location data.
The letter discusses the bulk collection of telephone metadata under Section 215 and what it includes. "As we have repeatedly and publicly said, we are not collecting cell site location information under this program," Clapper wrote. "On October 20, 2011 the Director of the National Security Agency committed to the Senate Select Committee on Intelligence that he would notify Congress if NSA intended in the future to obtain cell site location information prior to doing so. As you know, he reiterated this commitment before the Committee on 25 June 2013."
This is especially deceitful. Listening to Clapper, the non-paranoid American thinks, Okay, the NSA has promised to notify Congress if it intends to collect cell location data, and as of June 25 it hadn't done so. After all, the answer would make little sense if the NSA was already collecting location data through another program. Clapper's rhetoric implies that isn't happening yet in general.
On a previous occasion, Wyden, who is savvy enough to understand the NSA's rhetorical evasions, specifically asked the more general question: "Has the NSA collected or made any plans to collect Americans' cell-site location data in bulk?" And later in the letter, Clapper takes the question about collection beyond Section 215 and says, "As noted above, under this program NSA is not currently receiving cell site location data, and has no current plans to do so." Cleverly, misleadingly played.
General Alexander's Evasions
By September, Wyden was growing weary of all the evasions, and asked Alexander about collecting location data generally, not just under Section 215:
Alexander trots out the same misleading talking points, reading Clapper's prior response word-for-word. But he does something else too: He starts off by acting as if the surveillance community has already answered the question that Wyden is asking, when actually it has deliberately evaded it.
By this time, anyone who paid close attention to Wyden's hints about NSA overreach or the recurrence of the NSA's weasel language "under this program" knew damned well that, somehow, the NSA was collecting location data. (Keep in mind that Wyden sometimes knows more than he can publicly disclose.) But journalists couldn't report that as fact, and drawing the right conclusion required following the story at a level of detail that was well beyond the vast majority of normal news consumers and most journalists too, guaranteeing that Americans wouldn't know about the collection of location data, including location data on Americans. The blatant obfuscation was very effective at hiding the truth from the masses.
Alexander's Red Herring
On October 2, Alexander revealed a bit of information about location data:
Alexander told the committee that his agency once tested, in 2010 and 2011, whether it could track Americans' cellphone locations, but he says the NSA does not use that capability, leaving that to the FBI to build a criminal or foreign intelligence case against a suspect and track him.
"This may be something that is a future requirement for the country but it is not right now because when we identify a number, we give it to the FBI," Alexander said. "When they get their probable cause, they can get the locational data."
He said if the NSA thought it needed to track someone that way, it would go back to the Foreign Intelligence Surveillance Court—the secret court that authorizes its spying missions—for approval. He added that his agency reported the tests to both House and Senate intelligence committees, and that the data was never used for intelligence analysis.
Notice how the second and third paragraphs give the distinct impression that the NSA isn't collecting cell-phone location data right now, that the NSA has no need to collect it right now, and that it would "go back" to the FISA court if that changed. Yet all the while, location data, including data on Americans, was being collected in bulk.
Interestingly, the revelation of the 2010 and 2011 location-data tests—details of which Clapper declassified later that month—also served as a perfect red herring. Surveillance state watchers who'd heard Wyden's questions had long known the NSA was already doing something with location data. Once the test program was expounded in Clapper's document release, the experienced analysts at Lawfare wrote that "they appear to address questions that Senator Ron Wyden has addressed about the bulk collection of cell phone location data."
They thought the bygone tests were the thing! Actually, Wyden was hinting at far bigger things.
Obama Administration officials carried out all this deception even though they knew that Snowden's cache would likely reveal the truth about the collection of location data. Sure enough, the truth came out a few months later, but it wouldn't be correct to suggest that their efforts had no consequences. Their behavior on this matter perfectly illustrates why neither the press nor the public should ever take anything a surveillance-state official says at face value. Even if they usually (though not always) say things that are technically true, they are also masters of deception, willing to egregiously mislead with their rhetoric if doing so will help them maintain maximum secrecy a bit longer.
Their defenders say they have good reason to behave that way—that their foray into collecting cell-phone location data is a legitimate secret, and that by keeping it for months more, they helped keep America safer. Even if that were the case, however, it wouldn't change the fact that their words cannot be trusted, and that journalists should stop treating their pronouncements as if they come from honest individuals.
Need more proof?
On December 5, after the Washington Post revealed that location data, including data belonging to Americans, is being collected, here's what the White House press secretary said: "I’m not in a position to discuss the details of particular tools and methods of intelligence collection, although yesterday, ODNI stated for the record that no element of the intelligence community is intentionally collecting bulk cell-phone location information about cell phones in the United States."
Like so many that came before it, it is a statement exquisitely crafted to mislead.
*Surveillance-state apologists insist that Congress has always been fully briefed on the NSA and a meaningful check on its activities—yet large groups of senators are reduced to sending letters to learn the answers to questions as significant as location tracking.