So what if the government tracks my phone calls?
It’s a phrase I heard at a party in the wake of former National Security Agency analyst Edward Snowden’s document leaks. And it’s a question that will no doubt reappear at Christmas parties this year, no matter the country you live in. The NSA is global.
And this question brings us to, of all people, Senator Dianne Feinstein of California. The chair of the US Senate Select Committee on Intelligence wrote an op-ed in USA Today last October defending the NSA call-records program.
She got to the point:
"The call-records program is not surveillance. It does not collect the content of any communication, nor do the records include names or locations. The NSA only collects the type of information found on a telephone bill: phone numbers of calls placed and received, the time of the calls and duration. The Supreme Court has held this 'metadata' is not protected under the Fourth Amendment."
Her opening argument essentially states that the information collected is harmless. It's the phone bill most people throw in the trash. The second part discusses that when the NSA needs it, the information must be at the ready.
So I wanted to test Feinstein's argument out, the first part, the idea that phone records are not surveillance, just an innocuous collection of data.
And I wanted to see if the NSA would stand by such words. Its records collection certainly hasn't been viewed in the same way internationally. Feinstein's office didn't return a call, a message and a tweet about the NSA or the call-records program.
So I filed a Freedom of Information Act (FOIA) request seeking Feinstein's call records. In the FOIA to the NSA, I referenced the same USA Today paragraph quoted above and then argued:
"I believe in writing this statement she's publicly waiving her privacy act rights. Therefore, her phone records are part of the public record."
On November 15th, a three-page letter came back from the NSA. Would I get Senator Feinstein's 'metadata'? I was about to find out.
The letter started off by referencing a talking point commonly used when the NSA defends its activities. It invoked terrorism and security.
"NSA is authorized to engage in these activities in order to prevent and protect against terrorist attacks, the proliferation of weapons of mass destruction, intelligence activities directed against the United States, international criminal drug activities, and other hostile activities directed against the United States."
As the response continued, it discussed the news coverage of NSA intelligence programs. It said the NSA can only review the "metadata" if there is "reasonable suspicion, based on specific facts, that a phone number is associated with a foreign terrorist organization." The NSA also noted that it treats the phone records with respect, and that only a select few have access to the information.
Page two finally had the NSA's response to my request:
"To the extent that your request seeks any information on Senator Feinstein in relation to NSA intelligence programs, or in relation to any specific methods or means for conducting the programs, we cannot acknowledge the existence or non-existence of such information."
I'd been Glomar'd. That's the name in the public document world for when the government neither confirms nor denies the existence of a document. It's within the right of the NSA to do so, if the request relates to classified national security records, or if a privacy right exists.
The name Glomar comes from the Glomar Explorer, a CIA ship built with the help of Howard Hughes to fetch a sunken Soviet submarine. The CIA claimed it could neither confirm nor deny the existence of documents about the ship. From there on out, Glomar was shorthand for such a rejection.
But the NSA's response to my FOIA request didn't end with the Glomar. It kept going. And things got interesting. The NSA stated that any response to such a request would allow our enemies to better understand how the NSA works. This could be problematic:
"Were we to provide positive or negative responses to requests such as yours, our adversaries' compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security."
If you remember, all I asked for was phone records — the type of information found on a telephone bill, as Senator Feinstein put it. In this case, her telephone bill. She portrayed such data as innocuous.
But according to the FOIA response, the NSA thinks the data on any phone bill is serious stuff. A terrorist could use phone records to damage the US. Enemies could use them to understand how we spy. The release of phone records could put our country in "exceptionally grave danger."
All this gets us back to the opinion I wanted to test out: Senator Dianne Feinstein trying to convince the American public that the call-records program is not surveillance because it simply collects phone records, which are basically harmless metadata.
After receiving the NSA response, this is what I will tell my friends at Christmas:
You can argue the NSA should continue collecting such data in bulk without a warrant. You can argue that such data should be readily available for the NSA to use. You can argue the information helps the NSA connect the dots between known and suspected terrorists.
But what you can't do is try and portray the data as something less than it is.
UPDATE: There are more questions about this issue. I've reached out to the NSA FOIA office, which told me to contact the press office, which then told me to send the request in writing.
I pushed back on that, but didn't get anywhere. So I wrote this question to them: I'm curious to know if the NSA believes phone records are more than just "the type of information found on a phone bill. What do phone records mean to the NSA?
I also contacted Senator Dianne Feinstein's press office. I'll let you know when, and if, either one gets back to me.