NSA: Figuring Out How Many US Citizens We Illegally Spied On Would Violate Their Privacy

from the wtf dept

Tue, Jun 19th 2012 7:11am — Mike Masnick

For quite some time now, we've been reporting on Senators Wyden and Udall's repeated attempts to get the government to explain how many American citizens the NSA spied on under the FISA Amendments Act (which is supposed to be used to spy on foreigners, but appears to have been used much more broadly). It's quite clear that Wyden and Udall, in their roles on the Senate Intelligence Committee, believe there is some information that the public needs to know about, but which is not public. So they keep asking the same basic question over and over again. As we noted last week, since most of the rest of Congress does not have this information, and yet is expected to vote on the renewal of the FISA Amendments Act, something is seriously wrong.

What's never made sense is why the feds simply refuse to admit how many Americans they've spied on under the law. In the past, the Director of National Intelligence has basically told Wyden and Udall that he wouldn't answer because he didn't want to. But the latest answer really takes the insanity to stunning new levels. As initially revealed at Wired, the NSA has refused to answer claiming that, not only would it be too much work to figure it out, but that figuring it out would violate the privacy of Americans.

Yes, I'm going to repeat that, because it's insane. The NSA claims that figuring out how many Americans it spied on would violate their privacy. Here's the specific language from the letter:

The NSA IG provided a classified response on 6 June 2012. I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA's mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons..

At this point, you have to just wonder if the NSA is flat out mocking Wyden and Udall and basically taunting them to make it clear that the NSA doesn't believe anyone has oversight powers concerning the agency. And, of course, there is the other explanation: that the NSA has spied on more or less everyone who owns a mobile phone (which has been suggested by some reports).

Either way, it certainly sounds like the NSA really doesn't care what the law actually says, so long as it gets to keep spying on people.

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Filed Under: data surveillance, fisa amendments act, marc udall, nsa, ron wyden, spying

54 Comments

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Nick Dynice (profile), 19 Jun 2012 @ 7:11am

Orwell and Kafka together could not have come up with a better headline!
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Digger, 19 Jun 2012 @ 7:17am

Sounds like FISA is busted and the NSA needs to be shutdown
No really, I understand we cannot shutdown the NSA, but the people currently running it need to have more than their hands slapped - I think some serious hard time for the top 10% of the NSA employees, admins, etc - ie the decision makers is the answer.

You do the crime, you do the time.

Spying on Americans is a crime, tantamount to treason. If it were up to me, I'd go for death penalty.
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ASTROBOI, 19 Jun 2012 @ 7:22am

Business as usual.
Read "Enemies" by Weiner, a recent history of the FBI and you will see that this sort of behavior is not new. Hoover tapped phones, opened first class mail, burgled homes and businesses from day one and only now has some of this information become public. Only difference is that now a lot more information can be gathered and it requires less manpower. But the basic idea that the government can pretty much do as it pleases is nothing new.
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Anonymous Coward, 19 Jun 2012 @ 7:25am

Why is it that they can go through all the work of spying on everyone but they can't go through the work of documenting how many people they spy on.
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Anonymous Coward, 19 Jun 2012 @ 7:26am

'the NSA really doesn't care what the law actually says, so long as it gets to keep spying on people'

should read 'as long as NSA gets to carry on spying on whomsoever it wants to and taking the piss out of the Senators that can cut it's funding (be bit of a stupid move, dont you think?)
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Anonymous Coward, 19 Jun 2012 @ 7:30am

*facepenis*

Faceplalm just doesn't cut it with this level of fail
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arcan, 19 Jun 2012 @ 7:42am

Re: Business as usual.
question. if you shot one of them for illegally invading your home, would that be considered defending your property? or attacking a government official?
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arcan, 19 Jun 2012 @ 7:43am

Re:
you do have to admit they have balls for saying that to people who can really mess with their lives.
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TechnoMage (profile), 19 Jun 2012 @ 7:43am

NSA Exempt from most US laws anyways
My understanding is that the NSA is exempt from most US laws anyways. (I'm not kidding)

I know for a fact that they can legally hack into other departments of the gov't because they run the military's college cyber defense contest, since they are the only ones legally able to hack into (any branch of) the military's networks.
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Torg (profile), 19 Jun 2012 @ 7:43am

Re:
"Spying is Privacy" does have a nice Orwellian ring to it.
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ch'kody (profile), 19 Jun 2012 @ 7:45am

This has to happen
It should come as no surprise that this sort of thing happens. It's bound to happen. It's human nature. Hot air wants to rise. Shit floats to the top.
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Anonymous Coward, 19 Jun 2012 @ 7:49am

If Mark Klein's information was correct, than basically they intercepted any traffic that went through at least 1 major IX point on the west coast. Sadly, this isn't just cloak and dagger conspiracy theory, since the government basically admitted to doing it by granting immunity to the Telcos that participated. Exactly how much traffic goes through these exchange points is rather astounding, so I'm assuming they could only tap into limited links. The exact scope of the plan though was completely buried, so I would think the more pertinent questions would be how many data centers were tapped, for what duration, on which carriers, and the size of the links?
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Anonymous Coward, 19 Jun 2012 @ 7:51am

The NSA has spied on EXACTLY
312,780,968. And the reason they cannot dedicate the resources to count the exact number is because it takes too long to look up the 2012 Census count for the US.
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Robert (profile), 19 Jun 2012 @ 7:52am

Above the law, maybe
But they are not above having their funding cut.

If Wyden and Udall can use FUD (same tactic used by all these days) they can maybe get congress to agree the NSA has too much funding.

These are tough economic times, if agencies don't want to cooperate, simply cut their funding and blame it on debt reduction.

Once you do that, maybe then they'll find the time write a simple query to their databases to get the total, sorta like the SQL SUM function.
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jupiterkansas (profile), 19 Jun 2012 @ 8:04am

Re: Re: Business as usual.
try it and see.
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jupiterkansas (profile), 19 Jun 2012 @ 8:06am

Re: Above the law, maybe
Cut their funding? In an election year? Not likely.
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Anonymous Coward, 19 Jun 2012 @ 8:08am

Re: Re:
If nothing else lawmakers believe ingnorance is strength.
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TtfnJohn (profile), 19 Jun 2012 @ 8:10am

Re: Re:
I was thinking that myself. Not so much new levels of insanity as new levels of New Speak.
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Anonymous Coward, 19 Jun 2012 @ 8:11am

Hmm, I wonder how a defense like this would work in court where a peeking Tom was on trial.

Peeping Tom: I didn't violate those women's privacy your honor, it was the prosecutors who violated it by filing a court case about it with all the names of the women in the court filings, as well as all the accusations of what I saw peeping in the door!
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TDR, 19 Jun 2012 @ 8:42am

NSA =
Neurotic Spying Aggressors
Never Sane Association
Needlessly Stupid Airheads
Nightmarish Surveillance Addicts
Nutcase Slimeballs of America
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kenichi tanaka, 19 Jun 2012 @ 9:13am

The NSA has already illegally spied on Americans so that would mean that the NSA has already violated the privacy of those Americans. Their argument is redundant since they're already admitting that they illegally spied on those Americans.

The U.S. Government is going to end up creating "American Terrorists" if they continue to violate the constitutional rights of the American People.
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Jay (profile), 19 Jun 2012 @ 9:17am

Re: Re: Business as usual.
Their immunized from constitutional oversight. Do you think the little detail of the 4th amendment actually stops them from doing what they want with the blessing of the Supreme Court?
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Jay (profile), 19 Jun 2012 @ 9:20am

Re:
That already happened. Look at the FBI's dismantling of the occupy movement.
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ChronoFish (profile), 19 Jun 2012 @ 9:28am

If you know data, you know it makes sense
While it seems outrages on the face of it, if you give it some thought and you can quite easily see why he may be right.

I don't know if this is the way it happens... but it makes sense to me:

If you have algorithms that basically triggers on word patterns over massive amount of streaming data, that streaming data is still "anonymous" until it triggers. Once the trigger happens, then the call is analyzed further and the details (who, who to, what, when, where, voice recognition of caller, voice recognition of receiver, etc) can be databased.

This way you're only tracking calls that matter to you, or at the very least eliminating mundane family chatter that you don't want to waste resources on. If 90% of the stream is ignored, then even though the calls have been "listened in on", it's filtered out - and the NSA doesn't have to waste its resources (which are finite) - and more to the point, what is filtered out is unknown (and mostly the NSA doesn't care about this filtered out "crap").

What you're asking the NSA to do when you want to know how many American's are spyed on, is for the NSA to go back to the stream and re-run it, this time cataloging EVERYTHING. Because the only way to get a count of callers is to know how many distinct callers there are in your stream.

Now you're forcing the NSA to actually database what hadn't been databased before. This not only provides you the number of American's spyed on, but it also has the undesired effect of creating records and tracking US Citizens, there-by violating their privacy.

Because it's not a simple matter of categorizing by phone number (more than one person uses a phone, one person uses multiple phones) there is no simple way to come up with the answer without analyzing what was filtered out.

-CF
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DCX2, 19 Jun 2012 @ 9:29am

My guess...
They store all the data without looking at it. And then, when they need to look at someone, they pull their info up. And they consider the act of storing - since it does not require human review - to not be "spying". If they were to try and count the number of Americans whose data has been stored, that would requiring a human to review the data, which means that those Americans would now have been spied on.
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Sallo (profile), 19 Jun 2012 @ 9:34am

Patrick Star...
So then, it appears that Patrick Star is head of the NSA!!!
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Anonymous Coward, 19 Jun 2012 @ 9:35am

They wont say the number because the number would be like,

"How many Americans are you spying on?"

"All of them"

This might be why the senators are bashing them with such simple questions.

The best part, anyone could bring suit against them at that point.
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ChronoFish (profile), 19 Jun 2012 @ 9:43am

Re: Re:
Or maybe the Occupy movement had no singular focus or actionable outcome. What started off as a good bitch-fest ended in tragedy in multiple parts of country.

They weren't fighting for "equal rights" or even "equal treament" they were fighting for corporation to "not be evil". Of course everyone wants this, but there is nothing concrete to be able call a victory.

It was destined to fail - and it did.
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DCX2, 19 Jun 2012 @ 9:46am

Re: If you know data, you know it makes sense
Because it's not a simple matter of categorizing by phone number (more than one person uses a phone, one person uses multiple phones) there is no simple way to come up with the answer without analyzing what was filtered out.

This is why I've been thinking, Senators Wyden and Udall should perhaps change their question.

As you may note just below your comment, I too think the NSA is alleging that collecting-but-not-reviewing is not spying. So the good Senators should find a way to say something along the lines of "how many communications have been collected?"

But then there's the many-to-many mapping that results. We have to find a way to frame the question so we can refer to the amount of data collected without requiring them to analyze it.

How many "communications"? How many phone calls? Emails?

Instead of looking for a specific value, should we just ask for an order of magnitude? For instance, between 1,000 and 10,000; between 10,000 and 100,000; 100k and 1 million; etc.
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ChronoFish (profile), 19 Jun 2012 @ 9:52am

Re: Re: If you know data, you know it makes sense
I think what was "spyed on" is everything that when through a public junction box. They may not even know how many calls. It's more like "If you called or received a call from the following area codes the '102, 103, 104.....' then you conversations was electronically scanned for key words between Jan 1 2002 and today."

The reality is they spied indiscriminately on all Americans. The reality is that they probably don't have a clue how man American's they spied on.

-CF
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Anonymous Coward, 19 Jun 2012 @ 9:54am

While I don't defend the NSA's action, I think their arguments are likely to be technically correct. From what I understand the NSA basically sets up their own data centers in the same buildings where the undersea cables join the domestic US networks. Then they clone the traffic and route to their own servers for collection and analysis.

Since they are reading tons of random bits, they aren't so much reading a known individual's email, as much as they are scanning all emails that come over that endpoint and looking for certain patterns and phrases that are interesting to them like "dirty bomb".

So potentially for them to tell congress which Americans they have spied upon, before reading the email, they would have to first figure out who was sending and receiving and then log that person. Which would require more resources and would actually reduce privacy since instead of looking at the content they would have to identify and track the individual.

My guess, based on my opinion that most if not all congressmen are out to screw us, is that this request will basically end up in a mandate that requires the NSA to track individuals in order to build a richer DB that is more useful to the political class than simply alerting us about pending attacks.
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Anonymous Coward, 19 Jun 2012 @ 10:02am

Re: Re: Re:
I liked the bottom-less fries...
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Jim O (profile), 19 Jun 2012 @ 10:18am

Re:
Because collecting information is an automated process now. Spying on everyone takes virtually no effort, but analyzing that data is an entirely different matter.
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Jay (profile), 19 Jun 2012 @ 10:39am

Re: Re: Re:
No, they haven't failed. They are exposing the lies of the banks in extending austerity while beginning a movement akin to what was seen in the time of FDR. Sure, it took 35 years of voodoo economics but there wool very shortly be a sharp reaction to the problems of austerity as evidenced by the Greek majority of Socialists, the ouster of Sarkozy in France, and even the Pirate Party's emergence as an alternative to the same plans that have not worked before.
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anon, 19 Jun 2012 @ 11:43am

surprise them...
I think what the politicians need to realize is that they are also citizens , they seem to have forgotten this.... do they not realize that every word they have typed and every phone call they have made is sitting in a database somewhere, to be used to force them to do the bidding of the demigods who are in control of this database, I mean seriously if they think they are immune to this collecting of data they must be really stupid.
And in fact they are probably the last group of citizens that should be supporting this. I suspect that most threats to the country originate with members of the government in one way or another. It would be great to see there faces when they realized this.
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Anonymous Coward, 19 Jun 2012 @ 11:44am

Hmmm
"I firmly believe that oversight of intelligence collection is a proper function of an Inspector General"

In other words, he's saying it's my business, not yours, Mr. Wyden. Just vote Aye when we tell you and we'll all get along just fine.
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Eponymous Coward, 19 Jun 2012 @ 11:50am

Re: If you know data, you know it makes sense
"This way you're only tracking calls that matter to you, or at the very least eliminating mundane family chatter that you don't want to waste resources on. If 90% of the stream is ignored, then even though the calls have been "listened in on", it's filtered out - and the NSA doesn't have to waste its resources (which are finite) - and more to the point, what is filtered out is unknown (and mostly the NSA doesn't care about this filtered out "crap")."

"If you know data, you know it makes sense", but on another level it makes no sense at all. Obviously then any intelligent terrorist that wants to see that their activity remains secret will disguise their conversations as mundane chatter. "I'm taking the kids to the pool around 7" can mean the bomb is in position at the bus terminal. If their language is coded into idle talk there isn't enough resources available to separate it out from the real "crap", thus this whole NSA adventure is only bound to catch the low hanging fruit. This is another area where overly automating things with algos makes us still vulnerable, and so this program is highly unproductive. Which leads one to wonder that instead of such programs existing to "make us safer", their real point is for agencies to gain more power and leverage for the sake of more power and leverage.
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Anonymous Coward, 19 Jun 2012 @ 11:55am

I would suggest they are scared to open that can of worms. Just the fact they can't even estimate a number tells you it is extremely high. It also tells you the NSA is violating its operating parameters and knows it.

Once you admit to how many, someone, somewhere, wants to know how, who, and why. Suddenly the position of having no standing in court changes. Right after that, enough pressure comes on congress to do something about ending it.
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DC (profile), 19 Jun 2012 @ 12:06pm

Re: If you know data, you know it makes sense
Nit pick, but "database" is not a verb. The verb is "store".
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DCX2, 19 Jun 2012 @ 12:23pm

Re: Re: If you know data, you know it makes sense
I think the emphasis on real-time analysis is too high. Even with a ton of hardware it'd be very hard to do real-time analysis and it would be circumvented by proper coded speech, like you say.

That's why I think instead that the data is vacuumed up and stored, where it can be reviewed by humans later. This has the added bonus of allowing this data to be mined with post-processing techniques, whose performance and efficiency will only improve in the coming years.
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Randy Zagar (profile), 19 Jun 2012 @ 12:38pm

It makes sense if the NSA is recording *raw* data...
Okay, I remember reading (probably on Wired) that the NSA has an unusual definition of "intercept" when it came to domestic telephone calls... An "intercept" for them was going back and analyzing their recordings, not the actual "making" of the recording.

If, for instance, I merely record raw packet data on the network and do not interpret it... then I've "captured the firehose", but I don't know what I've got until I analyze it.

If I have the budget to "capture the firehose" for the entire US telephone network, but I only need to analyze 10-20K "intercepts" per year, then I probably wouldn't have the equipment or staff to evaluate the details of all the data I have.

If that's the situation, then I'd probably respond similarly to Wyden's request. In order to answer his questions I'd have to analyze ALL the data I have, which I don't have the resources or budget to do... and even if I did, it'd expose the details of all communications on the network... which would be an invasion of privacy.
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Randy Zagar (profile), 19 Jun 2012 @ 1:28pm

Re: It makes sense if the NSA is recording *raw* data...
Also, if they actually don't have the capability to process all of their data... they can't actually talk about that in a public forum because that'd be revealing their internal techniques (which are classified).

The CIA, FBI and ordinary Law Enforcement aren't terribly keen about discussing their techniques in public either...
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John Fenderson (profile), 19 Jun 2012 @ 2:09pm

Re: Re: Business as usual.
if you shot one of them for illegally invading your home, would that be considered defending your property?

Not in my state, but here you can't legally shoot someone just for illegally entering your home, whether government employees or not. I think that's a good thing.
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Get off my cyber-lawn! (profile), 19 Jun 2012 @ 2:10pm

I agree
Just admit the answer is "ALL OF THEM" and move forward.
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John Fenderson (profile), 19 Jun 2012 @ 2:11pm

Re: Re: Re:
Of course everyone wants this

Oh, how I wish that were true!
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John Fenderson (profile), 19 Jun 2012 @ 2:15pm

Re:
So potentially for them to tell congress which Americans they have spied upon, before reading the email, they would have to first figure out who was sending and receiving and then log that person.

As other commenters have pointed out, instead of doing that they could probably satisfy the request by giving the equally technically correct answer: we spy on everybody.
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John Fenderson (profile), 19 Jun 2012 @ 2:17pm

Re: It makes sense if the NSA is recording *raw* data...
Okay, I remember reading (probably on Wired) that the NSA has an unusual definition of "intercept" when it came to domestic telephone calls... An "intercept" for them was going back and analyzing their recordings, not the actual "making" of the recording.

Just another example of how you can truthfully state any falsehood when you supply your own definitions of the terms.
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Anonymous Coward, 19 Jun 2012 @ 2:29pm

Re: NSA Exempt from most US laws anyways
I'm not sure if it was the NSA (I think it was possibly all the agencies under the DHS), but they can also submit secret evidence during trials in court.

Secret evidence means the defendant and his lawyer don't get to see it or argue against it. I don't remember whether the judge can see the secret evidence himself.
It can take the form of "We have complete proof that the accused shot the victim in the face. We can't show it to you because National Security, but trust us, it's 100% proof".

And of course let's not forget Habeas Corpus has been repealed for people accused of terrorism, and the US government can also assassinate US citizen accused of terrorism (and has done so twice - a terror suspect as well as his teenage son who was "collateral damage").
Spying on people is pretty light in comparison.

I'm curious to see how long Americans will tolerate this. It's interesting to see as an outsider.
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Anonymous Coward, 19 Jun 2012 @ 2:32pm

Re: If you know data, you know it makes sense
A very interesting point. Sounds like Techdirt missed something on this one.
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Anonymous Coward, 19 Jun 2012 @ 2:37pm

Re:
"NSA basically sets up their own data centers in the same buildings where the undersea cables join the domestic US networks."

Makes me wish Canada had it's own cable to Europe and the rest of the world. Currently all international internet traffic that originates or terminates in Canada goes through the USA where the authorities can intercept and spy on it.
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Anonymous Coward, 19 Jun 2012 @ 4:08pm

Re: My guess...
So data is only private when it is in the context of communication where all entities involved have an expectation of privacy ?

So don't look at the context and you are never breaching any privacy. If however you find some data that may be indicative of some wrongdoing you can use it to get a warrant to find out who it belongs to.

To find out who it all belonged to would break everyones privacy.
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Anonymous Monkey (profile), 19 Jun 2012 @ 10:53pm

"WTF"
and all I can say on the NSA is:

wait ... what ?!? o_0
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Anonymous Monkey (profile), 19 Jun 2012 @ 10:54pm

ate my subject
it should've been
"WTF": perfect dept.
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ChronoFish (profile), 20 Jun 2012 @ 7:23am

Re: Re: If you know data, you know it makes sense
From http://www.thefreedictionary.com/databased

"...da�ta�base (dt-bs, dt-) Computer Science
n. also data base
A collection of data arranged for ease and speed of search and retrieval. Also called data bank.
tr.v. da�ta�based, da�ta�bas�ing, da�ta�bas�es
To put (data) into a database...."
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