After Claiming USA Freedom Would Be A Boon To ISIS, Ex-NSA Director Now Mocks How Weak USA Freedom Is

from the funny-how-that-works dept

We've written enough about former NSA and CIA director Michael Hayden that you should already know to take what he says with a large grain of salt. He will say basically anything to further his argument, no matter how false or disingenuous. He doesn't appear to care. He's admitted that September 11th gave him permission to reinterpret the 4th Amendment. He's claimed that terrorist attacks that weren't prevented were proof for why the NSA should keep collecting metadata. He lied about whether he and others lied about the CIA's torture program. He claimed that the release of the Senate Intelligence Committee's exec summary of the CIA torture report would be the tipping point for terrorists attacking us (how'd that work out?). He's argued that no one who thinks Ed Snowden is a whistleblower should be allowed to work in government. He claimed that Senator Feinstein was too emotional about the CIA torture program to judge it effectively. And on and on and on.

And then there's this. Last fall, we wrote about a WSJ op-ed that Hayden co-wrote with former Attorney General Mike Mukasey, completely ripping apart the USA Freedom Act. The headline was:

NSA Reform That Only ISIS Could Love

It claimed that the USA Freedom Act would "hobble the gathering of electronic intelligence" and predicted gloom and doom as a result:

For starters, the bill ends the National Security Agency’s bulk collection of what is called telephone metadata. This includes the date, time, duration and telephone numbers for all calls, but not their content or the identity of the caller or called, and is information already held by telephone companies. The bill would substitute a cumbersome and untried process that would require the NSA, when it seeks to check on which telephone numbers have called or been called by a number reasonably associated with terrorist activity, to obtain a warrant from the Foreign Intelligence Surveillance Court, or FISA court, and then scurry to each of the nation’s telephone-service providers to comb through the information that remains in their hands rather than in the NSA’s.

Nothing in the bill requires the telephone companies to preserve the metadata for any prescribed period. Current Federal Communications Commission regulations impose an 18-month retention requirement, but administrative regulations are subject to change. It isn’t hard to envision companies that wish to offer subscribers the attraction of rapid destruction of these records, or a complaisant bureaucracy that lets them do it.

The bill’s imposition of the warrant requirement on the NSA would be more burdensome than what any assistant U.S. attorney must do to get metadata in a routine criminal case, which is simply to aver that the information is needed in connection with a criminal investigation—period.

He points to the rise of ISIS and says that "the last thing" that Congress should be doing is pushing "a major new bill exquisitely crafted to hobble the gathering of electronic intelligence."

Of course, we all know that was hogwash, but as if to underline that point, let's see what the very same Michael Hayden has to say after the USA Freedom Act passed and became law. Now, all of a sudden, he thinks the bill is so weak that it's an opportunity to mock privacy advocates because this was "all" that they could get:

If somebody would come up to me and say “Look, Hayden, here’s the thing: This Snowden thing is going to be a nightmare for you guys for about two years. And when we get all done with it, what you’re going to be required to do is that little 215 program about American telephony metadata — and by the way, you can still have access to it, but you got to go to the court and get access to it from the companies, rather than keep it to yourself” — I go: “And this is it after two years? Cool!”

He's actually right about that second point -- which is why we've been saying repeatedly that USA Freedom needs to only be a starting point for real reform. However, given that Hayden's position on the bill flipped entirely within a period of eight months, it should emphasize that whenever you see Hayden fearmongering, it's bullshit. He's just doing that as a cynical political ploy to help the surveillance state get or keep its surveillance powers.

Filed Under: cia, ed snowden, metadata, michael hayden, nsa, privacy, section 215, surveillance, usa freedom

If US Is Really Able To Target ISIS Sites Based On Social Media Posts... Why Is It Trying To Stop ISIS From Using Social Media?

from the questions-to-ponder dept

You may have heard the story that came out recently, claiming that the US Air Force was able to bomb an ISIS headquarters building based on a photo posted to social media. The story has gone somewhat viral and has been getting a lot of attention. The key bit, from DefenseTech:

“The guys that were working down out of Hurlburt, they’re combing through social media and they see some moron standing at this command. And in some social media, open forum, bragging about the command and control capabilities for Daesh, ISIL. And these guys go: ‘We got an in.’ So they do some work, long story short, about 22 hours later through that very building, three [Joint Direct Attack Munitions] take that entire building out.”

Frankly, this story has the "too good to be true" or "too good to fact check" kind of feel to it -- and tons of press have picked up on it. We'll leave it to others to sort out whether or not it really happened. However, if it did happen, doesn't it seem bizarre that folks in our government are -- at the very same time -- insisting that social media sites should be censoring and shutting down ISIS social media accounts? After all, if they can provide so much information to allow us to bomb ISIS headquarters in under a day (remember: "we kill based on metadata"), then shouldn't the US government actually be encouraging more of these "morons" to be posting photos and revealing their whereabouts and other secrets?

It seems like the US always struggles with this kind of crap. Nearly a decade ago, we had Senators demanding that YouTube not allow "terrorists" to keep their accounts, even as YouTube coverage was helping to reveal atrocities and bring more attention to horrible attacks. Or we'd see stories of law enforcement using Craiglist to help bust prostitution rings while still blaming Craigslist and demanding they stop allowing such things to happen on the platform.

Why is it that grandstanding American politicians always want to blame the platforms for people doing bad stuff on those platforms, even when those platforms appear to provide all sorts of useful information that apparently help law enforcement, intelligence agencies and the military do their jobs?

Filed Under: air force, censorship, intelligence community, isis, metadata, research, social media

Good News! Dianne Feinstein Is Here To Reform The Section 215 Program By Making Everything Worse!

from the breaking-what's-already-broken dept

As Section 215 dies a rather noisy death (OR DOES IT? An emergency session convenes on May 31st, a day normally filled with the quiet emptiness of the extended Memorial Day holiday), the defenders of the mostly-useless surveillance program are out in force, hoping to keep this part of the Patriot Act from expiring.

Mitch McConnell's hope for a no-questions-asked reauthorization is as dead as Section 215 (in its original form) appears to be. The USA Freedom Act stumbled in the Senate, falling three votes shy of being brought to the floor. Now, everyone seems to have a "fix" they'd like to offer. Unfortunately, some of those offering fixes aren't really interested in cutting back the metadata program.

Like Dianne Feinstein, for instance. About the only thing she's found contemptible about our nation's intelligence agencies is the CIA's proclivity for torturing detainees. And the longer she defends the NSA's intrusive programs, the more it gives off the impression that her main problem with the CIA's torture program is that it was ineffective.

She's offering her own "surveillance reform" bill in the wake of much legislative blood shedding, and much like her last "reform" offering, it does nothing of the sort.

[F]einstein’s bill, first reported by the Empty Wheel blog, rolls back a number of key provisions in the USA Freedom Act…

Rather than restrict the NSA (and the FBI, which benefits from the collection and issues the requests to the FISA Court in its name) to seeking metadata from service providers on a case-by-case basis, her bill introduces data retention requirements that amount to little more than simply relocating the metadata storage.

Feinstein’s current proposed bill – presented as an update to the original Foreign Intelligence Surveillance Act (Fisa) of 1978 – proposes an end to NSA bulk collection but contains various mandates for how phone companies would be required to store the data, something privacy advocates argue amounts to a re-creation of the NSA database in private hands.

Also missing are USA Freedom's stipulations aimed at greater transparency and oversight. Not only that, but her bill seems crafted to deter the next Edward Snowden from embarrassing the intelligence community's wholesale subversion of the Fourth Amendment.

Dianne Feinstein is the latest member of Congress to offer a non-compromise compromise to replace the compromise USA F-ReDux, this time with a bill that would:

• Impose a 2-year data mandate in some cases (which would affect Apple and Verizon most immediately)
• Extend the current dragnet order — which is already 89 days old — for an entire year
• Retain Richard Burr’s Section 215-specific Espionage Act imposing 10 year penalties on anyone who tells us what the intelligence community is really doing with the call records program
• Retain Richard Burr’s counter-productive amicus provision

Here's more detail on what Burr's "additions" actually mean, from Marcy Wheeler.

It appears to flip the amicus provision on its head, such that if Verizon or Apple challenged retention or any other part of the program, the FISC could provide a lawyer for the tech companies and tell that lawyer to fight for retention. And in the piece de la resistance, the bill creates its very own Espionage Act imposing 10 year prison terms for anyone who reveals precisely what’s happening in this expanded querying function at providers.

It is, in short, the forced-deputization of the nation’s communications providers to conduct EO 12333 spying on Americans within America.

These are the sort of "fixes" we can expect from staunch defenders of the NSA. They look like reforms, but they are surrounded by language that expands surveillance reach and government power. Tossing this bill down in the middle of legislative war over a program criticized heavily as both intrusive and useless is nothing more than Feinstein hoping to leverage the weight of the NSA's supposed oversight to push a few legislators off the "undecided" fence and towards ensuring the uninterrupted harvesting of "tangible things."

Filed Under: data retention, dianne feinstein, metadata, nsa, patriot act, section 215, surveillance, usa freedom act

Senator Bob Corker Says NSA Should Be Spying On More Americans, Not Fewer

from the say-what-now? dept

Senator Bob Corker, who heads the Senate Foreign Relations Committee, appears to now be calling for the NSA to spy on more Americans, rather than fewer, arguing that the metadata collection program that is currently being debated in Congress is so small that he considers it negligent.

"It's almost malpractice," Corker said at a breakfast for reporters hosted by The Christian Science Monitor. "That's the best word I can use to describe the amount of data that is being collected."

Corker, who said the NSA's data collection needs to be "ramped up hugely", was reacting to a closed-door briefing that national security officials held Tuesday to brief senators on federal surveillance programs....

[....]

"I think there was an aha moment (Tuesday) for people on both sides of the aisle when we realized how little data is being collected.... It's beyond belief how little data is part of this program, especially if the goal is to uncover terrorists."

Now, this is the same Senator Corker who originally was quite disturbed when he first heard about the very same program after it was leaked by Ed Snowden (suggesting he was completely unaware of it prior to it leaking, despite being a Senator). Back in June of 2013, he sent an angry letter to the President about how such "broad collection" raised "extremely serious concerns."

But now he thinks the NSA should actually be spying on more Americans? It sounds like the NSA briefing that was just given to Senators was designed to really ramp up the fear-mongering.

Filed Under: bob corker, metadata, nsa, section 215, surveillance

To The NSA, A Reporter Covering Al Qaeda Looks Identical To An Al Qaeda Member

from the we-kill-based-on-metadata dept

On Friday, The Intercept released some new Snowden documents, showing how the NSA used metadata to claim that a well-known and well-respected Al Jazeera journalist, Ahmad Muaffaq Zaidan, was a member of Al Qaeda. This is all based on his phone metadata:

The document cites Zaidan as an example to demonstrate the powers of SKYNET, a program that analyzes location and communication data (or “metadata”) from bulk call records in order to detect suspicious patterns.

Now, there are a few interesting things that come out of this. First, the NSA has phone metadata on phones in Pakistan. That's found in the other released presentation on the NSA's "SKYNET" (yes, SKYNET) program: But, perhaps the much more interesting tidbit is that this detailed report showing why they think Zaidan is a key Al Qaida courier shows a huge problem with metadata. When you think about it, it really should not be at all surprising that a journalist who is one of the leading reporters covering Al Qaeda might have phone metadata similar to someone who is actually in Al Qaeda. It's likely that he tries to contact them a lot and that he goes to where they are a lot. That's called being a reporter. But, to the NSA, those sorts of distinctions don't matter. Remember, former NSA boss Michael Hayden has outright admitted that "we kill people based on metadata."

Metadata reveals an awful lot, but there may be alternative explanations for those patterns. But when you get so focused on the data itself, you fall into this trap of believing what the data suggests may be true, because it looks so analytical. The idea that it might be a "false positive" and that there might be an alternative explanation (i.e., a reporter covering Al Qaeda is likely to have similar metadata) doesn't even seem to enter into the equation...

Filed Under: ahmad muaffaq zaidan, ahmad zaidan, al qaida, journalism, metadata, nsa, reporter, skynet, surveillance

Banks Now Eyeing Cell Phone Metadata To Determine Your Loan Risk

from the when-smart-devices-get-a-little-TOO-smart dept

We've long talked about how companies are only just starting to figure out the litany of ways they can profit from your cell location, GPS and other collected data, with marketers, city planners, insurance companies and countless other groups and individuals now lining up to throw their money at cell carriers, auto makers or networking gear vendors. For just as long we've been told that users don't need to worry about the privacy and security of these efforts, and we definitely don't need new, modernized rules governing how this data is being collected, protected, or used, because, well, trust.

Automakers (and the cellular carriers that control the on-board infotainment systems) for example are collecting and sharing an ocean of data with only a casual glimpse toward security and transparency. No worry, however, as they promise that they're totally thinking about consumers as they use this data for a litany of new, utterly non-transparent purposes you hadn't even thought about. Like your automaker taking your car's GPS and performance data and selling it to insurance companies to potentially impact your insurance rates.

As yet another example of how your cell and location data may come back to bite you in unforeseen ways, reports suggest that researchers are now exploring the use of metadata to better determine whether you should receive a bank loan. It's relatively early in the effort, but the research is showing that it's not particularly hard to determine a customer's potential finance risk simply by studying their cell behavior:

"Daniel Björkegren, an economist at Brown University in Providence, Rhode Island, is working with EFL to predict whether someone will pay back a loan based on their cellphone data. He combed through the phone records of 3000 people who had borrowed from a bank in Haiti, looking at when calls were made, how long they lasted and how much money people spent on their phones.

The algorithm looks at this metadata to get a sense of a person's character. Do they promptly return missed calls and pay their phone bills? That suggests they might be more responsible. Are most of their calls made in an area far away from the bank branch? Then it may be hard for the bank to keep tabs on their whereabouts.

Björkegren found that the bank could have reduced defaults by 43 per cent by using the algorithm to pick better people to give loans to. The results were presented at the NetMob conference in Cambridge, Massachusetts, earlier this month."

It's worth noting that despite the collected data being anonymized, researchers were able to identify people 90% of the time with just 4 pieces of information. That's yet another example of how anonymous data isn't really anonymous, and if the data gets into the wild -- the fact that it has been "anonymized" doesn't really mean all that much. And with the security on everything from "smart" TVs to home IOT devices usually being relatively flimsy, there's going to be an awful lot of new data on you out there floating around the ether to include in analysis.

And while such a system might be great for the banks, it's probably not so great for you if you didn't want your cell data used in this way. And as the article notes, should you protect your privacy and opt out of your cell data being used in tangential business relationships, customers in the not-so-distant future might find themselves labeled as "suspicious" by companies -- simply for not being in a sharing mood.

Filed Under: bank loans, metadata, mobile phones

Jeb Bush Compliments Obama For Continuing And Expanding His Brother's War On Terror

from the HOT-THREE-WAY-SURVEILLANCE-ACTION! dept

I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party, generally…

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries, which result, gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of Public Liberty…

It serves always to distract the Public Councils, and enfeeble the Public Administration. It agitates the Community with ill-founded jealousies and false alarms; kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

George Washington's Farewell Address, 1789

Not for nothing did Washington warn against the formation of political parties. In this country, bipartisan support can occasionally still be found for the innovative or the innocuous, but for very little else. Not that the parties are really that different. A lot of partisan opposition is predicated on nothing more than the "wrong" party pushing the legislation. There are sharp divides in terms of social programs and issues, but when it comes to funding the military, intelligence agencies and law enforcement, there's very little difference between the Democrats and the Republicans.

But the illusion of disparity still exists, even in these issues, and even when many on both sides are receiving similar funding from interested parties. So, it's a bit odd to hear a leading figure of one political party publicly praise the leader of another. Jeb Bush did just that, recently. He managed to toss President Obama a thumbs-up for one set of policy decisions.

Medved: If you were to look back at the last seven years, almost, what has been the best part of the Obama administration?

Jeb Bush: I would say the best part of the Obama administration would be his continuance of the protections of the homeland using the big metadata programs, the NSA being enhanced. Advancing this — even though he never defends it, even though he never openly admits it, there has been a continuation of a very important service, which is the first obligation, I think of our national government is to keep us safe. And the technologies that now can be applied to make that so, while protecting civil liberties are there. And he’s not abandoned them, even though there was some indication that he might.

Of course, he would say that. After all, Obama's approach to this area has been roughly the same as his brother's, George W. Bush. The 9/11 attacks opened the door for another endless war and all the government land grabs that went with it. Obama's tenure has only expanded on Bush's groundwork. There have been reforms mooted, but they're reforms Obama would never have considered if it hadn't been for Snowden's leaks. The reforms are mostly cosmetic and concentrate far too much on a program that even some intelligence officials have admitted is close to useless: the bulk phone metadata collections.

As Glenn Greenwald points out at The Intercept, even the farthest right of the Republican party have had generally nice things to say about his foreign policy decisions, seeing as they're the sort of things you'd normally expect the more-hawkish Red Staters to deploy: extrajudicial drone killings, indefinite detention and other areas where civil liberties have taken a back seat to national security.

If there's any place our government remains (mostly) united, it's the War on Terror. Government figures love government power and nothing makes the State "healthier" than a good, long war. Jeb Bush's by-proxy approval of his brother's programs isn't going to hurt his presidential chances with much of the party faithful. He might steer those concerned by the unchecked growth of the surveillance state towards his competition, however, what with Rand Paul promising to kill off the NSA's domestic surveillance programs shortly after delivering his inaugural address -- a promise I like in principal but am much less enamored with in terms of practicality.

In short, Jeb Bush's compliments are nothing more than a government figure telling the world that he likes government power. And the more it gets, the happier he'll be.

Filed Under: barack obama, jeb bush, metadata, patriot act, president obama, section 215, surveillance

EFF, Human Rights Watch Sue The DEA Over Mass Surveillance Program

from the good-timing dept

Well, that was quick. As we noted, just yesterday, USA Today published a detailed takedown of the DEA's massive phone records mass surveillance program that was actually started more than two decades ago. And this morning, the EFF, representing Human Rights Watch, filed a lawsuit over the program. Of course, the program had actually been revealed years ago, and back in January, the US government revealed some details itself about the program, which is what prompted the new lawsuit. As the EFF notes in its press release about the lawsuit:

“The DEA’s program of untargeted and suspicionless surveillance of Americans’ international telephone call records—information about the numbers people call, and the time, date, and duration of those calls—affects millions of innocent people, yet the DEA operated the program in secret for years,’’ said EFF Staff Attorney Nate Cardozo. “Both the First and Fourth Amendment protect Americans from this kind of overreaching surveillance. This lawsuit aims to vindicate HRW’s rights, and the rights of all Americans, to make calls overseas without being subject to government surveillance.”

I recommend reading the full complaint which has more details. It details why the program violates both the First and Fourth Amendments. The basic First Amendment argument:

By their acts alleged herein, Defendants have violated and are violating the First Amendment free speech and free association rights of Plaintiff and its staff, including the right to communicate anonymously, the right to associate privately, and the right to engage in protected advocacy free from government interference.

And the Fourth Amendment argument:

By the acts alleged herein, Defendants have violated Plaintiff’s reasonable expectation of privacy and denied Plaintiff its right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States.

It seems likely that the government will pull out all the usual stops to try to end this lawsuit, arguing "national security" and "state secrets" and all that jazz. However, as the USA Today report noted, Eric Holder agreed to kill off this program after realizing that it was nearly impossible to defend in the same manner as the feds were trying to defend the NSA's bulk phone records collection...

Filed Under: 1st amendment, 4th amendment, dea, first amendment, fourth amendment, lawsuit, mass surveillance, metadata, phone records, surveillance
Companies: eff, human rights watch

DEA Phone Tracking Program Would Have Continued If Not For Snowden

from the thank-you-snowden dept

We already covered the fact that the DEA had a phone tracking program similar to the NSA's that we've been debating. As we noted in our post, that DEA phone tracking program was actually revealed years ago in a NY Times report, though it didn't get that much attention at the time. Yesterday, USA Today's Brad Heath did a much more detailed report on the details of the program -- including how massive it was, how little oversight there was (basically none) and how widely it was used (all the time). But there was one element that seemed important enough to call out separately: this program has been ended and it's entirely because of Ed Snowden. While there's still a fight going on over whether or not the NSA program will continue after June 1st (when Section 215 of the PATRIOT Act expires), Heath's reporting notes that the DOJ realized the DEA program could not continue -- once it realized how similar it was to the NSA program:

Holder pulled the plug on the phone data collection in September 2013.

That summer, Snowden leaked a remarkable series of classified documents detailing some of the government's most prized surveillance secrets, including the NSA's logging of domestic phone calls and Internet traffic. Reuters and The New York Times raised questions about the drug agency's own access to phone records.

Officials said the Justice Department told the DEA that it had determined it could not continue both surveillance programs, particularly because part of its justification for sweeping NSA surveillance was that it served national security interests, not ordinary policing. Eight months after USTO was halted, for example, department lawyers defended the spy agency's phone dragnet in court partly on the grounds that it "serves special governmental needs above and beyond normal law enforcement."

Three months after USTO was shut down, a review panel commissioned by President Obama urged Congress to bar the NSA from gathering telephone data on Americans in bulk. Not long after that, Obama instructed the NSA to get permission from the surveillance court before querying its phone data collection, a step the drug agency never was required to take.

The DEA stopped searching USTO in September 2013. Not long after that, it purged the database.

"It was made abundantly clear that they couldn't defend both programs," a former Justice Department official said. Others said Holder's message was more direct. "He said he didn't think we should have that information," a former DEA official said.

Think about this, though: the program lasted for more than two decades before anyone bothered to even consider this idea. And it was only once the other database (which actually had a lot more strict access controls) started getting negative press that Justice Department officials realized they had no real legal basis for the DEA program.

Who, again, is watching the watchers? While some have argued that Snowden's revelations have not (yet) resulted in the NSA's surveillance programs being stopped, it seems pretty clear that he was directly responsible for this DEA program being shut down completely and the data purged.

Filed Under: dea, ed snowden, eric holder, metadata, phone calls, surveillance, usto

Turns Out Feds Actually Tracked Most International Calls For Nearly A Decade Before 9/11 -- Didn't Stop The Attack

from the well,-look-at-that dept

One of the big arguments trotted out repeatedly by surveillance state defenders concerning the NSA's Section 215 program to collect records on all phone calls is that such a thing "would have prevented 9/11" if it had been in place at the time. Here's former FBI boss Robert Mueller making just that argument right after the initial Snowden leaks. Here's Dianne Feinstein making the argument that if we had that phone tracking program before September 11th, we could have stopped the attacks. And here's former NSA top lawyer and still top NSA supporter Stewart Baker arguing that the program is necessary because the lack of such a program failed to stop 9/11.

Except, it turns out, the feds did have just such a program prior to 9/11 -- run by the DEA. As you may recall, back in January it was revealed that the DEA had its own database of phone call metadata of nearly all calls from inside the US to foreign countries. Brad Heath at USA Today came out with a report yesterday that goes into much more detail on the program, showing that it dates back to at least 1992 -- meaning that the feds almost certainly had the calls that Feinstein and Mueller pretended the government didn't have prior to 9/11.

The now-discontinued operation, carried out by the DEA's intelligence arm, was the government's first known effort to gather data on Americans in bulk, sweeping up records of telephone calls made by millions of U.S. citizens regardless of whether they were suspected of a crime. It was a model for the massive phone surveillance system the NSA launched to identify terrorists after the Sept. 11 attacks. That dragnet drew sharp criticism that the government had intruded too deeply into Americans' privacy after former NSA contractor Edward Snowden leaked it to the news media two years ago.

But, you might say, perhaps the DEA didn't share that info with the NSA. Well... if we go back to some of the NY Times award-winning reporting on the NSA's surveillance programs from 2007, we see that it actually mentions this DEA program... and notes that the NSA worked with the DEA on it:

In the drug-trafficking operation, the N.S.A. has been helping the Drug Enforcement Administration in collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions. The program dates to the 1990s, according to several government officials, but it appears to have expanded in recent years.

Officials say the government has not listened to the communications, but has instead used phone numbers and e-mail addresses to analyze links between people in the United States and overseas. Senior Justice Department officials in the Bush and Clinton administrations signed off on the operation, which uses broad administrative subpoenas but does not require court approval to demand the records.

That's from 2007 reporting by James Risen, Eric Liechtblau and Scott Shane. Heath's reporting fills in some additional gaps:

The data collection began in 1992 during the administration of President George H.W. Bush, nine years before his son, President George W. Bush, authorized the NSA to gather its own logs of Americans' phone calls in 2001. It was approved by top Justice Department officials in four presidential administrations and detailed in occasional briefings to members of Congress but otherwise had little independent oversight, according to officials involved with running it.

The DEA used its data collection extensively and in ways that the NSA is now prohibited from doing. Agents gathered the records without court approval, searched them more often in a day than the spy agency does in a year and automatically linked the numbers the agency gathered to large electronic collections of investigative reports, domestic call records accumulated by its agents and intelligence data from overseas.

The result was "a treasure trove of very important information on trafficking," former DEA administrator Thomas Constantine said in an interview.

The report also shows how the DEA got this info from telcos using the simple process of an administrative subpoena, so there was no court review. Telcos could have protested and gone to court, but the DOJ urged them not to do so:

The DEA obtained those records using administrative subpoenas that allow the agency to collect records "relevant or material to" federal drug investigations. Officials acknowledged it was an expansive interpretation of that authority but one that was not likely to be challenged because unlike search warrants, DEA subpoenas do not require a judge's approval. "We knew we were stretching the definition," a former official involved in the process said.

Officials said a few telephone companies were reluctant to provide so much information, but none challenged the subpoenas in court. Those that hesitated received letters from the Justice Department urging them to comply.

After Sprint executives expressed reservations in 1998, for example, Warren, the head of the department's drug section, responded with a letter telling the company that "the initiative has been determined to be legally appropriate" and that turning over the call data was "appropriate and required by law." The letter said the data would be used by authorities "to focus scarce investigative resources by means of sophisticated pattern and link analysis."

And, of course, the DEA kept this whole database of metadata a secret by... using parallel construction:

To keep the program secret, the DEA sought not to use the information as evidence in criminal prosecutions or in its justification for warrants or other searches. Instead, its Special Operations Division passed the data to field agents as tips to help them find new targets or focus existing investigations, a process approved by Justice Department lawyers. Many of those tips were classified because the DEA phone searches drew on other intelligence data.

That practice sparked a furor when the Reuters news agency reported in 2013 that the DEA trained agents to conceal the sources of those tips from judges and defense lawyers. Reuters said the tips were based on wiretaps, foreign intelligence and a DEA database of telephone calls gathered through routine subpoenas and search warrants.

As a result, "the government short-circuited any debate about the legality and wisdom of putting the call records of millions of innocent people in the hands of the DEA," American Civil Liberties Union lawyer Patrick Toomey said.

Heath's report also notes that the NSA metadata collection under Section 215 was very much modeled on the DEA's collection that began a decade earlier. If there are any differences between the two it seems that the NSA was actually much more restrained in how it used all the phone call metadata.

For one thing, DEA analysts queried their data collection far more often. The NSA said analysts searched its telephone database only about 300 times in 2012; DEA analysts routinely performed that many searches in a day, former officials said.

Again, this DEA program isn't really a new revelation, but Heath's reporting sheds a lot more light on how widespread it was and how it was used over the years.

And, also, as we are less than two months away from the big fight over renewing Section 215 of the PATRIOT Act, you can be sure that some surveillance state defender is going to cite 9/11 as a reason why we need to keep the program. Hopefully, people can remind them that it appears we had just such a program (which was even more widely used) at the time, and it did not stop 9/11.

Furthermore, Heath's reporting shows that once the program disappeared, while the DEA claims it missed the program, it was quickly able to build a more reasonable followup by just targeting specific numbers:

The DEA asked the Justice Department to restart the surveillance program in December 2013. It withdrew that request when agents came up with a new solution. Every day, the agency assembles a list of the telephone numbers its agents suspect may be tied to drug trafficking. Each day, it sends electronic subpoenas — sometimes listing more than a thousand numbers — to telephone companies seeking logs of international telephone calls linked to those numbers, two official familiar with the program said.

In other words, targeted surveillance, rather than mass surveillance. As many have been arguing for years, there's no reason why the NSA can't adopt a similar program. So don't believe the intelligence community and its apologists when they wrongly insist that such a mass surveillance program is necessary.

Filed Under: 9/11, administrative subpoena, bulk phone records, dea, judicial oversight, metadata, phone records, section 215, surveillance