Privacy SOS

NSA records hundreds of millions of phone calls and can rewind to listen on a “hunch”

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Today The Intercept published a story illustrating that the NSA, deceptively working under "lawful intercept" agreements brokered by the Drug Enforcement Administration but without the full knowledge of the host country, collects the content of every cell phone call made in the Bahamas. Since every call is recorded, NSA analysts can "follow up on hunches by going back in time and listening to phone calls recorded during the previous month. Such "retrospective retrieval” means that analysts can figure out what targets were saying even when the calls occurred before the targets were identified," journalists Ryan Devereaux, Glenn Greenwald, and Laura Poitras report.

US citizens Senator Tom Harkin, Bill Gates, and Oprah Winfrey have homes in the Bahamas. Millions of Americans visit the island nation each year.

A former DEA official interviewed by The Intercept described why DEA is a good cover for NSA programs like SOMALGET, the code name for the Bahamas operation. "Countries let us in because they don’t view us, really, as a spy organization," he told reporters. But countries don't fully understand what DEA does, the former official said. "DEA is actually one of the biggest spy operations there is. Our mandate is not just drugs. We collect intelligence."

Today’s story about the NSA recording and storing all phone calls in the Bahamas comes months after the Washington Post published a report about the NSA's MYSTIC program, which collects metadata and content. The Post's report also described the full-take audio capabilities as applied to one specific country, but withheld the name of the targeted nation citing national security reasons.

The Intercept named the Bahamas as the NSA target of "full-take audio" harvesting under SOMALGET, but its reporters also say that the Bahamas is not alone: NSA records and stores the content of all phone calls in a second country, too. We don't know what country that is because The Intercept isn't saying. The outlet "is not naming [the second country] in response to specific, credible concerns that doing so could lead to increased violence," the journalists report.

I have no idea what other country besides the Bahamas is a target of NSA's full-take audio surveillance under SOMALGET. But as soon as I read that there is a second, yet to be named country targeted under the program, I immediately thought of comments that have been bothering me for over a year.

In May 2013, just weeks after the Boston Marathon bombings, a former FBI agent went on television and twice said something that seemed incredible: the federal government has the capability to rewind our domestic phone calls and listen to what we said last month. Officials can do this even if they had no reason to suspect us of wrongdoing when we made the call, he said, implying that some government agency collects all phone content, enabling the kind of "rewinding" described in the SOMALGET program.

Former FBI agent Tim Clemente first let this slip in an interview with CNN's Erin Burnett during a discussion about the FBI’s investigation of Tamerlan Tsarnaev’s widow, Katherine Russell, as a possible accomplice in the bombing. Here’s a snippet of that conversation, excerpted from Greenwald’s old blog at the Guardian, where he wrote about the exchange. Specifically, Clemente and Burnett were discussing the FBI’s "focus[] on telephone calls between Russell and Tsarnaev that took place both before and after the attack to determine if she had prior knowledge of the plot or participated in any way," Greenwald wrote.

BURNETT: Tim, is there any way, obviously, there is a voice mail they can try to get the phone companies to give that up at this point. It's not a voice mail. It's just a conversation. There's no way they actually can find out what happened, right, unless she tells them?

CLEMENTE: "No, there is a way. We certainly have ways in national security investigations to find out exactly what was said in that conversation. It's not necessarily something that the FBI is going to want to present in court, but it may help lead the investigation and/or lead to questioning of her. We certainly can find that out.

BURNETT: "So they can actually get that? People are saying, look, that is incredible.

CLEMENTE: "No, welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not."

The next day, Clemente went back on CNN and was asked to elaborate on the claim he'd made the prior night on air. Clemente described intelligence “assets” that federal authorities have access to, that they cannot use in ordinary criminal investigations, but can use behind the scenes to develop leads and sources. He confirmed that "all digital communications are, um…there’s a way to look at digital communications in the past."

I have no proof that the United States is targeted under SOMALGET, like the Bahamas, for full-take audio collection. But Clemente's comments sure seem to suggest it.

Maybe the former FBI official has an ax to grind and is lying, or maybe he twice misspoke. On the other hand, a map illustrating the NSA's collection of metadata from countries worldwide would seem to corroborate his claims. In the map below, you can see that the NSA collects more metadata on Americans than it does on Russians or Mexicans. Mexico, The Intercept reports today, is one of five countries targeted under the NSA's MYSTIC program, which aims to scrape all a country's metadata from phone calls and internet communications.

Dark green indicates those countries least subject to NSA spying; red indicates those subject to the most NSA data collection. The United States is yellow, meaning NSA collects more on Americans than it does on Russia (yellowish green) and Mexico (light green).

© 2021 ACLU of Massachusetts.