A bus passes by a poster of Edward Snowden, a former contractor at the National Security Agency (NSA), displayed by his supporters at Hong Kong's financial Central district during the midnight hours of June 18, 2013. Reuters/Bobby Yip
Since we learned that the government has been collecting and storing Americans’ call data for years, Senate Intelligence Committee chair Dianne Feinstein; her counterpart in the House, Mike Rogers; and James Clapper, director of national intelligence, have been trying to claim it is not as bad as it sounds. The collection doesn’t include the content of communications, merely “metadata,” they argue, and anyway, the secret Foreign Intelligence Surveillance Act (FISA) court limits the circumstances under which the government can access this information. “The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization,” says Clapper.
In other words, the government’s response amounts to “trust us.”
But Americans have good reason to distrust the program, which, according to The Washington Post, is called MAINWAY. That’s true not just because history reminds us that the government has abused surveillance authorizations in the past, as it did when it used COINTELPRO to spy on dissidents decades ago. It’s also true because one of the direct predecessors of this program proved ripe for abuse.
Beginning in 2002, the government worked with the three major phone companies (at the time AT&T, Verizon and MCI) to set up lines in the FBI’s New York office—and later its Washington counterterrorism office—from which phone company employees would be able to access their company’s databases directly. FBI agents would have those employees query the database right from the FBI office, mostly using National Security Letters (NSLs)—a means of obtaining information directly from service providers without review by a judge. The purpose was similar to the newly revealed collection program: to allow the government quick access to metadata on any calls made in the United States. The metadata was then uploaded and entered into government computers in an easily usable format.
The earlier program started being phased out in 2006, just as the current one was being phased in, suggesting that this program replaced the earlier one. By creating copies of phone company databases, which are updated daily, the government has simply shifted the companies’ role. Today, the phone companies turn everything over in bulk. Rather than having phone company employees access the data, the NSA or FBI does it.
A 2010 report by the Justice Department’s inspector general (IG) shows that the predecessor program was a mess. The FBI failed to keep adequate records of requests made by the government to phone companies, frequently violating the limits of what they were entitled to take. More troubling still is a tool the FBI implemented, ostensibly for emergency situations, called “exigent letters”: basically a request to phone companies to provide data immediately, with a promise to provide the appropriate legal paperwork—either an NSL or a subpoena—after the fact. Using exigent letters, the FBI obtained records for more than 3,000 phone numbers, often failing to submit the paperwork, or doing so without the appropriate approvals. Requests were often approved by junior staffers, who had no authority to do so.
Moreover, some requests were not tied, as required, to a specific authorized investigation. Significant numbers (perhaps 17 percent, judging from figures in the IG report) were tied not to national security investigations, but to domestic ones. At times, the FBI requested information on phone numbers when no investigation was pending. When accepting information from phone companies, the FBI didn’t always compare its contents with the original request and therefore may have entered unrelated information into FBI databases. In an unknown number of other requests, the FBI submitted no paperwork at all.