The battle over domestic electronic surveillance returned to prominence last week with fresh hearings in Congress and the usual Cheney administration demagoguery. In a clear attempt to shape the debate, on Wednesday the President took to the bully pulpit at NSA headquarters in Fort Meade to demand that Congress stop pussy-footing around and make the six month FISA statute passed in August permanent. Chop, chop.
New revelations about NSA snooping, however, would seem to make quick passage of such legislation impossible. After all, the whole point of the six month sunset provision was to provide for six months of debate, not to just delay the vote until Congress had the chance to enjoy a month-long break, and then rubber stamp it like the good old days.
Congress sings surveillance blues
"The threat from al-Qaeda is not going to expire in 135 days," W said, "so I call on Congress to make the Protect America Act permanent."
Dubbed by critics the Police America Act, the law allows warrantless wiretapping of electronic communications as long as the target of the surveillance is overseas, or if domestic, the target of a terrorist investigation.
He had more than that on his mind, however. He also sought to bail out the telecommunications companies, which sold out their customers by granting retroactive immunity to the companies aided the administrations efforts.
"For years, the FBI was not only asking telecom companies to do its investigative work, but also asking them to sidestep the Fourth Amendment," said Michael German, ACLU National Security Policy Counsel. "The fact that telecoms complied with the FBI’s intrusive demands is shocking. It sets an extremely risky precedent to hand out such broad and vague authority to telecom companies. Ceding investigative powers to private companies will have disastrous effects not only for Americans’ privacy, but for their safety."
Whether or not Congress folds and bails out the telcos – and we think they will – some kind of formal expansion of the law also appears to be on the table. A sticking point between the administration and the secretive FISA court has been the court’s refusal to allow blanket wiretapping of foreign calls routed through American communications switches, and the President’s call for a permanent expansion of the law clearly envisions warrantless surveillance sweeps of these calls as well.
FBI, DCSNet and security
One interesting byproduct of expanded warrantless surveillance is how systems designed for ease of use - based on the assumption that the necessity of obtaining a warrant would minimize abuse, and which provide for nearly seamless monitoring of domestic communications - now provide for real-time warrantless snooping from anywhere in the country with the click of a mouse.
Since 1994, telcos operating in the US have been required to install switches that meet very specific wiretapping requirements, as mandated by the Communications Assistance for Law Enforcement Act, or CALEA. The CALEA-compliant switches allow the FBI to log directly onto the telco networks, whether land-based or cellular.
As Wired explained, after an examination of redacted FBI documents obtained originally by the Electronic Frontier Foundation (EFF):
Together, the surveillance systems let FBI agents play back recordings even as they are being captured (like TiVo), create master wiretap files, send digital recordings to translators, track the rough location of targets in real time using cell-tower information, and even stream intercepts outward to mobile surveillance vans.
FBI wiretapping rooms in field offices and undercover locations around the country are connected through a private, encrypted backbone that is separated from the internet. Sprint runs it on the government's behalf.
The network allows an FBI agent in New York, for example, to remotely set up a wiretap on a cell phone based in Sacramento, California, and immediately learn the phone's location, then begin receiving conversations, text messages and voicemail pass codes in New York. With a few keystrokes, the agent can route the recordings to language specialists for translation.
The numbers dialed are automatically sent to FBI analysts trained to interpret phone-call patterns, and are transferred nightly, by external storage devices, to the bureau's Telephone Application Database, where they're subjected to a type of data mining called link analysis.
Normally, the telcos flip the switch once served with a court order, but court orders are not necessarily mandatory these days, and anyway, the big telcos for the last few years have not seemed overly concerned about anything other than toadying up to the FBI and the NSA.
The prevalence of surveillance backdoors in the nation’s telecommunications infrastructure has also raised serious concerns over the security of that infrastructure.