As I’ve written about extensively over the past week, Senator Ron Wyden has been talking a lot lately about the NSA’s bulk records collection program under Section 215 of the Patriot Act in the context of mass location tracking. You can read more about the hints he has been dropping here and here.
During an oversight hearing post-Snowden revelations, Senator Wyden asked Director of National Intelligence James Clapper a seemingly simple question about location tracking, to which Clapper gave a typically obtuse and unhelpful response. Now the big spy has submitted a letter to Wyden, in which he explains a little bit more about the government’s location tracking powers. Well, not really.
Has the NSA collected or made any plans to collect Americans’ cell-site location data in bulk?
As noted above, under this program NSA is not currently receiving cell site location data, and has no current plans to do so. The Director of the NSA indicated on October 20, 2011 that he would notify Congress of NSA’s intent to obtain cell site location data prior to any such plans being put in place. This commitment was reaffirmed again on June 25, 2013 before the Committee. Additional information is provided in the classified supplement.
Note the many qualifiers in this statement. Clapper doesn’t simply say “Yes” or “No” to the seemingly straightforward inquest about whether the government has collected or has made plans to collect the location information of hundreds of millions of people.
Instead, Clapper says that “under this program NSA is not currently receiving cell site location data.” Under this program. Not currently.
Clapper says that the NSA told congress that it would notify lawmakers of location tracking plans before "any such plans being put in place." Notice he does not say "before any such plans ARE put in place."
And then the kicker: "Additional information is provided in the classified supplement."
In other words, the answer is not a simple "No." The government cannot or will not simply say "No, we are not collecting bulk location records."
We can therefore safely assume that either the NSA has already collected or made plans to collect Americans’ cell-site location data in bulk. If that isn't the case, why wouldn't Clapper say so? After all, the government routinely claims that these kinds of 'business records' are not protected by the Fourth Amendment, and that it can gobble them up without specific warrants until its data centers are bursting at the seams.
Unfortunately, a Fifth Circuit Court of Appeals decision today supports the government’s claim that our cell-site location information is not protected by the Fourth Amendment. Why is that? Because our cell signals, according to the court, are simply ‘business records,’ held by a ‘third-party,’ and therefore are magically exempt from constitutional norms.
Business record, eh? Sounds familiar.