Feds Claim Phone Data It Scooped Up Doesn't Include Location Data, And Also [REDACTED]

from the well-that-clears-it-up dept

Mon, Jun 24th 2013 1:45pm — Mike Masnick

Soon after the NSA leaks came out, we pointed to a murder trial in which the lawyers for one of the defendants used the news that the NSA was collecting so much metadata on all mobile phone calls to seek discovery on the data concerning the defendant's mobile phone location information, in the belief that it would present evidence that he was nowhere near the crime. The feds had claimed, initially, that when they subpoenaed his phone carrier during the original case, MetroPCS, that the data had already been destroyed. However, the defendant, Terrance Brown, pointed out that according to the leaked information, the NSA was collecting all such data, so the federal government should already have the data. The court seemed intrigued by this argument, and ordered the government to reply with a very short turnaround.

The government's response, filed last week, is both interesting and useless. It starts out by claiming that the collected data does not include "cell-site location info," which was requested:

In his motion, the defendant primarily seeks to compel production of cell site location data, i.e., information about where a cellular telephone was geographically located at the time a call was made ("CSLI"), during July 2010 for Metro PCS cellular telephone number (786) 307-4240, based on public reporting about the collection of call data records under a classified order by the Foreign Intelligence Surveillance Court ("FISC"). The information acquired under this program, however, did not include CSLI. Thus, the government does not possess the records the defendant seeks.

From there, there's a lot of [CLASSIFIED INFORMATION REDACTED] brackets, so it's unclear what else the government is saying to the judge. The filing does spend more time explaining why it needs to keep most of this discussion a secret. The claim that the business records request does not include CSLI is interesting, because it has long been assumed that such information was included in the metadata demanded under the FISC order. I'm wondering if the government is carefully parsing its words here, and a slightly different form of location data is included, rather than the specific "CSLI" data.

Later, in the non-redacted part of the filing, the DOJ pulls out the standard excuse from defenders of scooping up business records, that this isn't really surveillance since there is no expectation of privacy in 3rd party data:

Respectfully, the Government submits that Section 1806(f) is not the appropriate vehicle by which to respond to this Court's inquiries because the subject in question does not pertain to information obtained by electronic surveillance, as defined by FISA, but rather to records obtained through the "business records" authority of FISA.

Got that? You're not being spied on when the government hoovers up all that data on every single phone call, because it's just a "business record" not "electronic surveillance." Don't you feel more comfortable now?

Either way, people are pointing out that these kinds of requests, from defendants in federal trials, seeking data from these programs are likely to become a lot more common now that there's confirmation that such data exists.

20130619 US v Davis Govt Unclassified Response (PDF)20130619 US v Davis Govt Unclassified Response (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: business records, discovery, doj, evidence, nsa, nsa surveillance, surveillance, terrance brown
Companies: metropcs, verizon

30 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 24 Jun 2013 @ 1:49pm

they shouldn't have 'scooped' it in the first place, then there would be no need to keep lying about what they did and what they didn't 'scoop'!!
[ link to this | view in thread ]
Anonymous Coward, 24 Jun 2013 @ 1:52pm

So, even if the NSA found a terrorist in the data they're collecting...
So, the NSA is gathering all this data, but NOT the location of actual people making the phone calls? So that means that even if the NSA's meta data had conclusive proof that it was a terrorist making phone calls to other terrorists they wouldn't be able to figure out where the terrorists are in America so they can arrest them?

Somehow I don't believe that, as it makes a lot of the cell phone data the government gathers rather useless to not include such vital information if you're tracking the every move of a suspected terrorist.
[ link to this | view in thread ]
Anonymoose, 24 Jun 2013 @ 1:58pm

The weasel is in the wording. "The information acquired under this program, however, did not include CSLI"

No one has asked if this information was collected under a different program, or if the government possesses this information in any form.
[ link to this | view in thread ]
Anonymous Coward, 24 Jun 2013 @ 2:06pm

Location
So that why they cannot stop bomb plots, they know when it is going to go off, but not where.
/sarc
[ link to this | view in thread ]
Anonymous Coward, 24 Jun 2013 @ 2:17pm

The verizon FISA request included
a request for trunk identifiers and routing information. Wouldn't that give location info?
[ link to this | view in thread ]
PRMan, 24 Jun 2013 @ 2:21pm

Re: So, even if the NSA found a terrorist in the data they're collecting...
According to them:

They are using the data to come to the conclusion that, yes, you called a known terrorist 3 years ago. Then, they would get a warrant to track you in real-time which would include your current location and they could arrest you. (Your current location 3 years ago isn't really all that useful when trying to arrest people if you can get where they are today or yesterday.)
[ link to this | view in thread ]
Anonymous Coward, 24 Jun 2013 @ 2:25pm

Re: Location
So it's Heisenberg's Terrorist Principle?
[ link to this | view in thread ]
Anonymous Coward, 24 Jun 2013 @ 2:26pm

Fool me once shame on you, shame me twice shame on me.

Anybody still believes anything that comes out of the mouth of the feds?
[ link to this | view in thread ]
ChurchHatesTucker (profile), 24 Jun 2013 @ 2:31pm

Re:
Now I wonder when requests include such wiggle room. Way to undermine damn near everything.
[ link to this | view in thread ]
Anonymous Coward, 24 Jun 2013 @ 2:35pm

"On Sunday, officials said that though the NSA is authorized to collect "geolocational" information that can pinpoint the location of callers, it chooses not to."

http://online.wsj.com/article/SB10001424127887323836504578549872755892406.html?mod=rss_Techn ology

(tinfoil hat) we choose not to today, but we did yesterday and will again tomorrow.

the problem isn't that they do, it's that they can.
[ link to this | view in thread ]
Watchit (profile), 24 Jun 2013 @ 2:38pm

Re: Re: So, even if the NSA found a terrorist in the data they're collecting...
That is sound reasoning for sure, but this is the NSA we're talking about. Isn't their motto "The more surveillance the better!" or something.
[ link to this | view in thread ]
Watchit (profile), 24 Jun 2013 @ 2:40pm

Re: Re:
Wouldn't it be ironic if all the data they collected could actually be put to good use and they don't use it...
[ link to this | view in thread ]
CyberKender, 24 Jun 2013 @ 2:48pm

Re:
Ah, but they have maintained that the NSA is allowed to collect this data. Congress signed off on the Patriot Act, and the FISA court has given it their approval. Since it's all legitimately collected, you'd think that they'd be willing to share if it could either clear an innocent man or put another dirty criminal in jail...
[ link to this | view in thread ]
Anonymous Coward, 24 Jun 2013 @ 2:49pm

So the government is either lying or being irresponsible gathering the geolocational data. Considering that E911 services use triangulation to put a 'best guess' on someone making a call within 5ft of where the call is taking place, I'll choose to go with the former rather than the latter.
[ link to this | view in thread ]
TheLastCzarnian (profile), 24 Jun 2013 @ 2:57pm

Why warehouse the data?
Yet another thing has been bothering me about the NSA warehousing the data. If an NSA OFFICIAL, not just an agent, walks over to a database administrator and asks for data, what exactly is there to stop him? We've already seen a network admin in California get jailtime for refusing to hand out passwords. What would they get for refusing to disclose data to a government official?
I'm guessing that is the REAL reason to store the data on-premeses. No one can rationally buy that a 24-48 hour delay is going to negatively affect an investigation.
[ link to this | view in thread ]
Rapnel (profile), 24 Jun 2013 @ 3:03pm

Re: Re: Re: So, even if the NSA found a terrorist in the data they're collecting...
In God We Trust - All Others We Monitor." all-around unofficial US INTEL motto in general I think.

Ya'll dint think that was a joke didja?

The point of this whole exercise is that the Department of Defense is unleashed within our borders. Not only is that a no-no it's flat out bat shit crazy.

Our military, in case you were unaware, is a well oiled killing and control machine. They follow orders quite well. The controls that were in place to prevent that machine from operating on its own soil have been chipped away at. That trend must be reversed.

THERE IS NO FUCKING WAR ON TERRORISM. Ass munchers. Just a facade for 'the hunt for evil doers' and your monies - not too mention a little strategic awareness planning.
[ link to this | view in thread ]
Jeff_Vader_runs_the_Deathstar? (profile), 24 Jun 2013 @ 3:17pm

Re: So, even if the NSA found a terrorist in the data they're collecting...
Not entirely true, even without any location data you know all the TMobile numbers had to have been in one of the 3 place in the whole GD country where they get service...
[ link to this | view in thread ]
Anonymous, 24 Jun 2013 @ 3:53pm

Re: Re: So, even if the NSA found a terrorist in the data they're collecting...
A "Star Wars XXX" reference! I like it!!!
[ link to this | view in thread ]
Edmund M, 24 Jun 2013 @ 4:48pm

In his motion, the defendant primarily seeks to compel production of cell site location data, i.e., information about where a cellular telephone was geographically located at the time a call was made ("CSLI"), during July 2010 for Metro PCS cellular telephone number (786) 307-4240, based on public reporting about the collection of call data records under a classified order by the Foreign Intelligence Surveillance Court ("FISC"). The information acquired under this program, however, did not include CSLI. Thus, the government does not possess the records the defendant seeks.
And what if, say, they were collecting data on which cell towers a phone was using, without looking for the location of the phone itself - until they want to, of course? It seems to be possible with the above wording.
[ link to this | view in thread ]
horse with no name, 24 Jun 2013 @ 7:03pm

complaining about censorship
Complaining about censorship and redacted documents is pretty rich coming from Techdirt right now, considering what you do with every one of my posts.

Each post is "held for moderation" and not added to the discussion until long after the thread is no longer viable - if the post is added at all. By my count, 75% of my posts never make it to the site.

Censorship, plain and simple.

Why, oh why, are you scared of people who don't agree with you?
[ link to this | view in thread ]
Zem, 24 Jun 2013 @ 8:34pm

Don't blame the NSA
Blame Superman

As defender of the free he has clearly failed to stop this.
[ link to this | view in thread ]
anon, 24 Jun 2013 @ 9:13pm

Specifically CLSI?
You reveal your location every few seconds when your phone is on. If they collect this ping info (snapshot the phone company's database of which tower you are on)do they really need to record exact location of call? Ask for too precise information, you get a simple "sorry, we don't have THAT."

Although, this is odd because if you are hoovering data, why would you skip such obviously useful and available data? Or is such data something that needs to be specifically requested if you, for example, make a 911 call? Otherwise, all they have is a cell tower?

There you go - for the tinfoil afficionados, they could chug their database finding correlations between phones. "85% of the time,phone A is with phone B". Never mind it's because the guy lives in the apartment above yours. But they can still correlate how often cells that call each other are geographically in the same tower service; gives you a good lead to who is in his cell. (The sleeper type, not the phone cell)
[ link to this | view in thread ]
Lurker Keith, 24 Jun 2013 @ 10:19pm

So...
If the Domestic data collected can't find the Terrorists, explain to me, again, why the Military needs to collect it?
[ link to this | view in thread ]
Ninja (profile), 25 Jun 2013 @ 5:21am

Well, it's classified and they can't tell a thing of what's happening so any assumptions we make are automagically right. I mean the evidence is there, the DOJ just doesn't want to release it so I'm innocent by default. Right?
[ link to this | view in thread ]
The Real Michael, 25 Jun 2013 @ 5:27am

Re: So, even if the NSA found a terrorist in the data they're collecting...
The problem with any response by a government agency is that they can say whatever they want, no matter how far from the truth, because there's no accountability.
[ link to this | view in thread ]
Anonymous Coward, 25 Jun 2013 @ 6:06am

I'm sorry, we didn't collect CSLI data accurate to within a couple of hundred feet, we collected GPS data accurate to within a couple of inches. Sorry about your luck
[ link to this | view in thread ]
wec, 25 Jun 2013 @ 9:24am

Ninja, Ideally aren't we all innocent by default?
[ link to this | view in thread ]
Anonymous Coward, 25 Jun 2013 @ 9:36am

NSA phone records won't help, bank robbery suspect concedes
�NSA phone records won't help, bank robbery suspect concedes�, by Paula McMahon, Sun Sentinel, June 24, 2013

The defense for a Miami man accused of taking part in a number of attempted bank robberies in Broward County has conceded that any cellphone records kept by the National Security Agency � under a program that secretly retained millions of phone records � would not help him to prove his innocence.�.�.�.

The article goes on to say that the defense has withdrawn their request for the NSA records.
[ link to this | view in thread ]
John Fenderson (profile), 25 Jun 2013 @ 9:43am

Re: Don't blame the NSA
Superman is a dick.
[ link to this | view in thread ]
Loki, 25 Jun 2013 @ 10:57am

I'm wondering if the government is carefully parsing its words here,

Given the dozens, if not hundreds, of examples already cited of the government carefully parsing their words and selectively defining their terms in the past few weeks/months, I think they have set a strong enough precedent that we don't need to wonder at this point. I automatically assume they do so and look for it when they speak now.
[ link to this | view in thread ]