Unlocking the latest Wyden code: Does NSA operate a bulk domestic location tracking program?

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Senator Ron Wyden (D-OR) has a habit of dropping hints to the public about classified information related to the surveillance state. In remarks to the Center for American Progress earlier this week, he hinted that the bombshell revelations about NSA spying -- ranging from mass metadata collection to invasive PRISM snooping -- are really just the tip of the iceberg. Of particular interest were comments that could be read as implying that the government operates bulk, domestic location tracking programs, and also uses malware to turn our cell phones into bugs and spy cameras.

The Senator did not explicitly disclose any such programs, but there is ample reason to believe this speech was meant to sound warning bells about precisely those issues. That's because Ron Wyden has a habit of finding clever ways to inform the public about secret surveillance programs, without running afoul of the secrecy rules that prevent him from explicitly disclosing classified information.

Wyden's strategic interrogations and public warnings

An outspoken privacy defender, Wyden sits on the Senate Intelligence Committee, where he has repeatedly pushed intelligence officials to answer what we now know are strategic, leading questions. The following exchange between Wyden and Office of the Director of National Intelligence (ODNI) head James Clapper is probably the most famous example of Wyden’s wily ways.

Here, at a Senate Intelligence Committee hearing in March 2013, Wyden asks Clapper a question he already knows the answer to. It is a leading question. The answer, as we found out in June 2013, is yes. James Clapper, we now know, told an outright lie. 

Wyden: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

Clapper: “No, sir.” 

Wyden: “It does not?”

Clapper: “Not wittingly. There are cases where they could inadvertently, perhaps, uh, collect, but not wittingly.”

You've probably read that exchange ten times before. But lesser known is the back and forth that preceded it. Shortly before this now infamous exchange, Wyden spends five minutes questioning Clapper and FBI Director Robert Mueller about another issue: location tracking.

Here’s the text of that exchange:

Wyden: “Director Clapper, I want to ask you about what I asked you about a year ago, and that was the matter of surveillance and particularly what the rules are that an intelligence agency would have to follow in order to electronically track the movements and locations of an American inside the United States. And I asked you about this a year ago, and you said that your lawyers were studying this, and I hope that, since a year has passed, we can get some answers to these questions.

“So first let me ask the question: If an intelligence agency wants to electronically track the movements and whereabouts of an American inside the United States, how much evidence do they need?”

Clapper: “Well first of all let me just say, sir, that, uh, particularly in the case of NSA and CIA, there are strictures against tracking American citizens in the United States for foreign intelligence purposes, and that’s what those agencies are set up to do. I think though, when, I might ask Director Mueller to speak to this, uh, because what you’re referring to is, I think, devolves into, uh, the law enforcement, criminal area. So, Bob...”

Wyden: “Let me -- and I do want to hear from Director Mueller -- but I’m trying to get some general principles out, with respect to intelligence. And you’ve cited, certainly, some areas that are relevant. But what I’m really trying to do is get an unclassified answer to a question about what the law authorizes.”

Clapper: “The law is, of course, as you know, embedded in the Foreign Intelligence Surveillance Act, which was recently, the amendment to which was recently extended for five years. And it places very strict, uh, strictures on the intelligence community’s tracking of US persons where there is a terrorism nexus. And that is overseen very strictly by both the FISA court, as well as within the executive branch, both by my office and the attorney general. So there are very strict rules about that, as you know, as we’ve discussed.”

Wyden: “As you know, there are some fundamental questions about the balance between security and liberty that transcend just the FISA question. So what I would like to do is see if we can get a direct answer to the question about when the intel community needs to get a warrant, for example, when a lesser amount of evidence would do, and second, the circumstances when no specific evidence is needed at all. And the FISA law does not specify whether a warrant is required, so that’s the reason that I’m asking the question. I asked --”

Clapper: “I’d like to ask Director Mueller to an-- to help me with that question.”

Wyden: “And Mr. Director I’m anxious to hear from Director Mueller, whom I greatly respect, but I also need to hear from you with respect to the intelligence community. That’s why I asked it a year ago and --”

Clapper: “I said, Senator Wyden, uh, in the case of CIA and NSA, who are engaged in foreign intelligence collection, that’s a practice they do not engage in.”

Wyden: “Director Mueller?”

Mueller: “Well, Senator, uh, you’re talking, well, let me start by saying that there’s no real distinction in what we do, between the criminal and the national security. We require on the criminal side, we require on national security [sic]. We treat them the same. There is no distinction between our intelligence cases, uh, in terms of, uh, undertaking the activity you, uh, you, uh, suggest, uh, and our criminal cases. That being said, in the wake of the Jones decision, which I’m sure you’re familiar with, that is, uh, puts some things in an area where we’re waiting to see where the courts go. But obviously they said if you were going to trespass to install a device, then that requires a warrant, and the standard on that warrant is still up in the air. And consequently to give you a more precise answer to a particular question on a particular monitoring, I would have to be more factually based, and then apply the law to that particular set of facts.”

Wyden: “Director Mueller, you have identified the exact reason why I’m trying to get an answer from Director Clapper, because there’s no question we are going to watch what the courts do in the days ahead. The question is what will be the rights of Americans while that is still being fleshed out? And the fact is, FISA does not specify whether a warrant is required, and I know I’m out of time for this round, I just want you to know, Director Clapper, respectfully, I will be asking this question of you, just like we did with the legal documents for targeted killings, which we finally got after seven requests over a two year period, until we can get an answer. Because I think Americans are entitled to a direct answer to that question."

Again, shortly after this line of questioning, Wyden asks Clapper whether the NSA collects information on millions or hundreds of millions of Americans, to which the intelligence director infamously responds: “No, sir.”

Thanks to Edward Snowden, we now know that to be a lie. But what of the location tracking comments?

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Why was Senator Wyden pressing so hard to get the director of national intelligence to tell him whether the government thinks it needs a warrant to track our physical locations? Could that be because he knows the answer, and it isn't a good one?

He gives us a hint in his Center for American Progress speech, video of which is embedded at the top of this page.

Despite the efforts of the intelligence community leadership to downplay the privacy impact of the Patriot Act collection, the bulk collection of phone records significantly impacts the privacy of million of law­abiding Americans. If you know who someone called, when they called, where they called from, and how long they talked, you lay bare the personal lives of law­abiding Americans to the scrutiny of government bureaucrats and outside contractors.

This is particularly true if you’re vacuuming up cell phone location data, essentially turning every American’s cell phone into a tracking device. We are told this is not happening today, but intelligence officials have told the press that they currently have the legal authority to collect Americans’ location information in bulk.

Especially troubling is the fact that there is nothing in the Patriot Act that limits this sweeping bulk collection to phone records. The government can use the Patriot Act’s business records authority to collect, collate and retain all sorts of sensitive information, including medical records, financial records, or credit card purchases. They could use this authority to develop a database of gun owners or readers of books and magazines deemed subversive. This means that the government’s authority to collect information on law­abiding American citizens is essentially limitless. If it is a record held by a business, membership organization, doctor, or school, or any other third party, it could be subject to bulk collection under the Patriot Act.

...

Without additional protections in the law, every single one of us in this room may be and can be tracked and monitored anywhere we are at any time. The piece of technology we consider vital to the conduct of our everyday personal and professional life happens to be a combination phone bug, listening device, location tracker, and hidden camera. There isn’t an American alive who would consent to being required to carry any one of those items and so we must reject the idea that the government may use its powers to arbitrarily bypass that consent.

It sure sounds like Mr. Wyden wants us to know something about the government tracking our movements without warrants. It also sounds like the feds might already be doing it, on a mass scale. That kind of bulk surveillance would be shocking indeed, but it actually isn't such a far out proposition.

On location tracking, why the secret law?

In fact, there are many pieces of circumstantial evidence that would support the assumption that such a bulk location records collection program already exists.

First, the DOJ told a court that Americans have "no privacy interest" in information showing where we are 24 hours a day, seven days a week. Second, the Obama administration opposes federal legislation that would require a probable cause warrant for location tracking. Finally, the DOJ will not tell the public what it thinks its legal obligations are with respect to location tracking. When the ACLU asked for DOJ legal memos describing its location tracking powers after the Supreme Court ruling on GPS, Jones, the department refused to hand over any information.

In short, the government asserts we have no privacy interest in location data, opposes a warrant requirement for location tracking, and meanwhile keeps secret the legal interpretation it uses to oversee this mode of surveillance. Not even Ron Wyden could get a straight answer out of Director of the FBI Robert Mueller about whether or not his spooks need warrants to track us as we go about our lives.

Taken together, these facts do not inspire confidence -- especially in light of Senator Wyden's many comments on location tracking over the years and in his recent speech. Quite to the contrary: they appear to leave wide open the possibility that a bulk, domestic location tracking program is in full scale operation as you read this.

We now know that NSA operates location tracking programs abroad. When asked whether the NSA's Section 215 metadata program involves location information, officials said NSA does not collect location data under "this program." Days later, the Washington Post published a story about Geolocation Cell, a group within the NSA tasked to track military targets in real time. NSA locates these people so that other agencies in the federal government can kill or capture them.

The Geolocation Cell revelation, while spooky, doesn't answer the question of whether the NSA (or FBI) collects location data in bulk at home. But Wyden's persistence in raising the issue over and over again, and the government secrecy surrounding these powers, sure make me wonder.

Maybe Glenn Greenwald will soon squelch the mystery once and for all by shining that big spotlight of his on this particular problem. Otherwise, it might be a long wait until the courts settle the question. As it stands, like Senator Wyden seems intent to remind us, domestic location tracking law is a well kept secret.

UPDATE: In terrible related news, the Fifth Circuit Court of Appeals has ruled that the government can track our cell phones without warrants. The court wrote:

[C]ell site information is clearly a business record. The cell service provider collects and stores historical cell site data for its own business purposes . . . the government merely comes in after the fact and asks a provider to turn over records the provider has already created.

If my analysis of Senator Wyden's comments is right, and the government is operating a bulk location tracking program under the authority of the 'Business Records' section of the Patriot Act, Section 215, this ruling shows that at least one court supports its constitutionality.

UPDATE 12/4/2013: From the Washington Post's Barton Gellman and Ashkan Soltani: "NSA tracking cellphone locations worldwide, Snowden documents show."

One senior collection manager, speaking on 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.

...

In scale, scope and potential impact on privacy, the efforts to collect and analyze location data may be unsurpassed among the NSA surveillance programs that have been disclosed since June. Analysts can find cellphones anywhere in the world, retrace their movements and expose hidden relationships among individuals using them.

...

The NSA has no reason to suspect that the movements of the overwhelming majority of cellphone users would be relevant to national security. Rather, it collects locations in bulk because its most powerful analytic tools — known collectively as CO-TRAVELER — allow it to look for unknown associates of known intelligence targets by tracking people whose movements intersect.

Still, location data, especially when aggregated over time, is widely regarded among privacy advocates as uniquely sensitive. Sophisticated mathematical techniques enable NSA analysts to map cellphone owners’ relationships by correlating their patterns of movement over time with thousands or millions of other phone users who cross their paths. Cellphones broadcast their locations even when they are not being used to place a call or send a text.

We should listen to Senator Wyden. Read more.

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