- Apr 24, 2013
- 1,200
The National Security Agency's collection of phone data, at the center of the controversy over U.S. surveillance operations, gathers information from about 20% or less of all U.S. calls—much less than previously thought, according to people familiar with the NSA program.
The program had been described as collecting records on almost every phone call placed in the U.S. But, in fact, it doesn't collect records for most cellphones, the fastest-growing sector in telephony and an area where the agency has struggled to keep pace, the people said.
The dwindling coverage suggests the NSA's program is less pervasive than widely believed—and also less useful.
"Landlines are going away, and new providers are entering the field," said one person familiar with the program. "It's hard to keep up."
The agency's legal orders for data from U.S. phone companies don't cover most cellphone records, a gap the NSA has been trying to address for years. That effort has been slowed by the NSA's need to fix a host of problems that it uncovered in the program and reported to the U.S. court that oversees NSA surveillance in 2009, people familiar with the matter say.
Moreover, the NSA has been stymied by how to remove location data—which it isn't allowed to collect without getting additional court approval—from U.S. cellphone records collected in bulk, a U.S. official said.
The exact details of which phone data are collected by the NSA couldn't be fully determined. NSA spokeswoman Vanee Vines said, "While we are not going to discuss specific intelligence collection methods, we are always evaluating our activities to ensure they are keeping pace with changes in technology."
Former officials have said the three companies served with the court orders are AT&T Inc., Verizon Communications Inc. and Sprint Corp. Verizon's order applies only to its landline business, Verizon Business Network Services Inc., and not to its separate cellphone business. Sprint was recently bought by a Japanese conglomerate, and it is unclear if that deal affected how much data is provided under its court order.
Further, these companies don't end up providing all of their data, as reflected in a little-noticed line in a report written by a White House-commissioned NSA review panel. The report said that data collected by NSA are "only a portion of the records of only a few telephone service providers."
The NSA's collection of phone data has become one of the most controversial aspects of the agency's surveillance operations, because it picks up so much data on innocent Americans. Details of the program, along with many others, came to light among the documents leaked by former NSA contractor Edward Snowden last year.
Critics of the phone-data program have regularly cited its comprehensive collection as a major invasion of privacy. Rep. Justin Amash (R., Mich.), who led a charge against the program last year, has described it as "collecting the phone records of every single person in the United States, regardless of whether you're under any suspicion."
A spokesman for Mr. Amash, Will Adams, said there weren't "second-class privacy rights" for people who use landlines. He added that he assumed terrorists would be more inclined to use cellphones than landlines, and not collecting all the phone data "undercuts" the argument for why it is needed at all.
As recently as this week, the top Democrat on the House Judiciary Committee, Rep. John Conyers (D., Mich.), called for the end of the phone-data program, which he said collected "records on virtually every phone call placed in the United States."
On Friday, Mr. Conyers said, "Our objection is to bulk collection. Bulk collection is inconsistent with the statute. It is inconsistent with the Constitution and inconsistent with our national values. The idea that the NSA has fallen behind in the project, and that their stated intent is to catch up, is of no comfort to us."
Intelligence officials have defended the mass nature of the program by contending they need the "whole haystack" of phone calls before they can analyze connections to a particular lead.
Director of National Intelligence James Clapper has also coined a second argument for the value of the program, saying it has a "peace-of-mind metric" and can be used to "rule out" domestic links to terror plots. A spokesman for Mr. Clapper didn't respond to a request for comment.
"The one question that has not been adequately answered is whether this program is effective," said Nancy Libin, a former chief privacy officer at the Justice Department. "You don't want to intrude on people's privacy and undermine public trust if it's not going to do any good." Ms. Libin added that she didn't think the program has proved its value.
President Barack Obama announced plans last month to move the phone data out of federal control. He also said a judicial order would be required to search the data, a requirement that was instituted on Thursday.
Mr. Obama's top advisers must report by March 28 on options to rework the program. The two most obvious alternatives—holding the data at the phone companies or at a third party—pose operational and privacy problems. One U.S. official said that expanding the program to cover more phone records could prove more difficult under a restructured version of the program.
The reduced scope of the program, which will only increase over time as cellphone use increases, could reshape the argument about its future.
Gen. Keith Alexander, director of the NSA, has said such a program, if it existed at the time, would have uncovered the 9/11 plot. It is unclear that the 20% coverage now could provide the same type of tripwire for a terror plot. A spokeswoman for Gen. Alexander didn't respond to a request for comment.
The disclosure of the lower collection rate undermines intelligence agencies' justification for the program, said Steve Vladeck, a constitutional law professor at American University.
"The whole point of the program is that it only works if they have all of the data," he said. "It may not be as alarming as collecting all the data, but it absolutely destroys the analytical justification for having any of it."
But the more limited scope didn't provide much encouragement to critics of the program.
"I don't find this revelation very reassuring," said Jameel Jaffer, deputy legal director of the American Civil Liberties Union. "To accept their legal reasoning is to accept that they will eventually collect everything, even if they're not doing so already. They're arguing that they have the right to collect it all."
A key difficulty for the NSA's efforts to keep pace has been the technical challenge of separating location data from cellphone calling records. The NSA has an agreement with the secret Foreign Intelligence Surveillance Court that it won't collect location data from phones without getting court approval.
The NSA in 2010 and 2011 tested its ability to address how to handle location information that was collected along with phone data. Intelligence officials have acknowledged that effort, but said it wasn't pursued because it wasn't found to be of value.
Gen. Alexander has left open the potential of collecting the data in the future, telling Congress in October that "this may be something that is a future requirement for the country, but it is not right now." The NSA promised to inform Congress before it collects location data.
Several people familiar with the program maintained it can still be useful even by covering 20% or fewer of calls in the U.S. That figure still represents many millions of calls each day, and billions each year. The records are kept for five years.
"If you want to cover the seam [between foreign and domestic plotting], it's better than nothing at all," said the person familiar with the phone-data program.
The program had been described as collecting records on almost every phone call placed in the U.S. But, in fact, it doesn't collect records for most cellphones, the fastest-growing sector in telephony and an area where the agency has struggled to keep pace, the people said.
The dwindling coverage suggests the NSA's program is less pervasive than widely believed—and also less useful.
"Landlines are going away, and new providers are entering the field," said one person familiar with the program. "It's hard to keep up."
The agency's legal orders for data from U.S. phone companies don't cover most cellphone records, a gap the NSA has been trying to address for years. That effort has been slowed by the NSA's need to fix a host of problems that it uncovered in the program and reported to the U.S. court that oversees NSA surveillance in 2009, people familiar with the matter say.
Moreover, the NSA has been stymied by how to remove location data—which it isn't allowed to collect without getting additional court approval—from U.S. cellphone records collected in bulk, a U.S. official said.
The exact details of which phone data are collected by the NSA couldn't be fully determined. NSA spokeswoman Vanee Vines said, "While we are not going to discuss specific intelligence collection methods, we are always evaluating our activities to ensure they are keeping pace with changes in technology."
Former officials have said the three companies served with the court orders are AT&T Inc., Verizon Communications Inc. and Sprint Corp. Verizon's order applies only to its landline business, Verizon Business Network Services Inc., and not to its separate cellphone business. Sprint was recently bought by a Japanese conglomerate, and it is unclear if that deal affected how much data is provided under its court order.
Further, these companies don't end up providing all of their data, as reflected in a little-noticed line in a report written by a White House-commissioned NSA review panel. The report said that data collected by NSA are "only a portion of the records of only a few telephone service providers."
The NSA's collection of phone data has become one of the most controversial aspects of the agency's surveillance operations, because it picks up so much data on innocent Americans. Details of the program, along with many others, came to light among the documents leaked by former NSA contractor Edward Snowden last year.
Critics of the phone-data program have regularly cited its comprehensive collection as a major invasion of privacy. Rep. Justin Amash (R., Mich.), who led a charge against the program last year, has described it as "collecting the phone records of every single person in the United States, regardless of whether you're under any suspicion."
A spokesman for Mr. Amash, Will Adams, said there weren't "second-class privacy rights" for people who use landlines. He added that he assumed terrorists would be more inclined to use cellphones than landlines, and not collecting all the phone data "undercuts" the argument for why it is needed at all.
As recently as this week, the top Democrat on the House Judiciary Committee, Rep. John Conyers (D., Mich.), called for the end of the phone-data program, which he said collected "records on virtually every phone call placed in the United States."
On Friday, Mr. Conyers said, "Our objection is to bulk collection. Bulk collection is inconsistent with the statute. It is inconsistent with the Constitution and inconsistent with our national values. The idea that the NSA has fallen behind in the project, and that their stated intent is to catch up, is of no comfort to us."
Intelligence officials have defended the mass nature of the program by contending they need the "whole haystack" of phone calls before they can analyze connections to a particular lead.
Director of National Intelligence James Clapper has also coined a second argument for the value of the program, saying it has a "peace-of-mind metric" and can be used to "rule out" domestic links to terror plots. A spokesman for Mr. Clapper didn't respond to a request for comment.
"The one question that has not been adequately answered is whether this program is effective," said Nancy Libin, a former chief privacy officer at the Justice Department. "You don't want to intrude on people's privacy and undermine public trust if it's not going to do any good." Ms. Libin added that she didn't think the program has proved its value.
President Barack Obama announced plans last month to move the phone data out of federal control. He also said a judicial order would be required to search the data, a requirement that was instituted on Thursday.
Mr. Obama's top advisers must report by March 28 on options to rework the program. The two most obvious alternatives—holding the data at the phone companies or at a third party—pose operational and privacy problems. One U.S. official said that expanding the program to cover more phone records could prove more difficult under a restructured version of the program.
The reduced scope of the program, which will only increase over time as cellphone use increases, could reshape the argument about its future.
Gen. Keith Alexander, director of the NSA, has said such a program, if it existed at the time, would have uncovered the 9/11 plot. It is unclear that the 20% coverage now could provide the same type of tripwire for a terror plot. A spokeswoman for Gen. Alexander didn't respond to a request for comment.
The disclosure of the lower collection rate undermines intelligence agencies' justification for the program, said Steve Vladeck, a constitutional law professor at American University.
"The whole point of the program is that it only works if they have all of the data," he said. "It may not be as alarming as collecting all the data, but it absolutely destroys the analytical justification for having any of it."
But the more limited scope didn't provide much encouragement to critics of the program.
"I don't find this revelation very reassuring," said Jameel Jaffer, deputy legal director of the American Civil Liberties Union. "To accept their legal reasoning is to accept that they will eventually collect everything, even if they're not doing so already. They're arguing that they have the right to collect it all."
A key difficulty for the NSA's efforts to keep pace has been the technical challenge of separating location data from cellphone calling records. The NSA has an agreement with the secret Foreign Intelligence Surveillance Court that it won't collect location data from phones without getting court approval.
The NSA in 2010 and 2011 tested its ability to address how to handle location information that was collected along with phone data. Intelligence officials have acknowledged that effort, but said it wasn't pursued because it wasn't found to be of value.
Gen. Alexander has left open the potential of collecting the data in the future, telling Congress in October that "this may be something that is a future requirement for the country, but it is not right now." The NSA promised to inform Congress before it collects location data.
Several people familiar with the program maintained it can still be useful even by covering 20% or fewer of calls in the U.S. That figure still represents many millions of calls each day, and billions each year. The records are kept for five years.
"If you want to cover the seam [between foreign and domestic plotting], it's better than nothing at all," said the person familiar with the phone-data program.
