NSA Collection of Metadata Hands Government Sweeping Personal Info

As the American Civil Liberties Union sues the Obama administration over its secret NSA phone spying program, we look at how the government could use phone records to determine your friends, medical problems, business transactions and the places you’ve visited. While President Obama insists that nobody is listening to your telephone calls, cybersecurity expert Susan Landau says the metadata being collected by the government may be far more revealing than the content of the actual phone calls. A mathematician and former Sun Microsystems engineer, Landau is the author of the book “Surveillance or Security?: The Risks Posed by New Wiretapping Technologies.”

TRANSCRIPT

This is a rush transcript. Copy may not be in its final form.

Nermeen Shaikh: The American Civil Liberties Union sued the Obama administration on Tuesday over the National Security Agency’s secret program to vacuum up the phone records of millions of Americans. The lawsuit comes less than one week after The Guardian and The Washington Postrevealed the existence of a secret court ruling ordering Verizon to hand over records of its business customers. This is ACLUattorney Alex Abdo.

Alex Abdo: This program is a massive and unprecedented grab of information by the intelligence agencies. They’re sweeping up or they’re tracking literally every call made in this country. And the Constitution simply doesn’t allow the government to do that. If it has a reason to suspect a particular American of wrongdoing, then the government should target that American for investigation or surveillance, but they shouldn’t indiscriminately sweep up the calls of millions of innocent Americans.

Amy Goodman: The disclosure of the secret NSA surveillance program was based on information leaked by Edward Snowden, a former CIA employee who most recently worked inside the NSA’s Hawaii office for the private firm Booz Allen Hamilton. On Friday, President Obama confirmed the existence of the surveillance program.

President Barack Obama: When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program’s about. As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. If these folks—if the intelligence community then actually wants to listen to a phone call, they’ve got to go back to a federal judge, just like they would in a criminal investigation. So, I want to be very clear—some of the hype that we’ve been hearing over the last day or so—nobody is listening to the content of people’s phone calls.

Amy Goodman: While President Obama insisted nobody is listening to your telephone calls, many cybersecurity experts say the metadata being collected by the government may be far more revealing than the actual content of the phone calls.

Joining us now from Washington, D.C., is Susan Landau, mathematician and former Sun Microsystems engineer, author of the book Surveillance or Security?: The Risks Posed by New Wiretapping Technologies. She received a Guggenheim Fellowship in 2012.

Susan Landau, welcome to Democracy Now! This may surprise many people, this point that metadata—just, you know, the fact of a phone call, who you called, perhaps where you made the call—can be more revealing than a transcript of the conversation itself.

Susan Landau: That’s right. That’s because a phone call—the metadata of a phone call tells what you do as opposed to what you say. So, for example, if you call from the hospital when you’re getting a mammogram, and then later in the day your doctor calls you, and then you call the surgeon, and then when you’re at the surgeon’s office you call your family, it’s pretty clear, just looking at that pattern of calls, that there’s been some bad news. If there’s a tight vote in Congress, and somebody who’s wavering on the edge, you discover that they’re talking to the opposition, you know which way they’re vote is going.

One of my favorite examples is, when Sun Microsystems was bought by Oracle, there were a number of calls that weekend before. One can imagine just the trail of calls. First the CEO of Sun and the CEO of Oracle talk to each other. Then probably they both talk to their chief counsels. Then maybe they talk to each other again, then to other people in charge. And the calls go back and forth very quickly, very tightly. You know what’s going to happen. You know what the announcement is going to be on Monday morning, even though you haven’t heard the content of the calls. So that metadata is remarkably revealing.

Nermeen Shaikh: Well, John Negroponte, the nation’s first director of national intelligence under President George W. Bush, has defended the surveillance program and the collection of metadata. He described metadata as, quote, “like knowing what’s on the outside of an envelope.” Susan Landau, your response to that?

Susan Landau: That’s not really true. That was the case when we had black telephones that weighed several pounds and sat on the living room table or the hall table, and you knew that there was a phone call from one house to another house. Now everybody carries cellphones with them. And so, the data is, when I call you, I know that I’m talking to you, but I have no idea where you are. It’s the phone company who has that data now. And that data is far more revealing than what’s on the outside of an envelope. As I said earlier, it’s what you do, not what you say. And because we’re carrying the cellphones with us and making calls all during the day, that it’s very, very revelatory.

Nermeen Shaikh: Could you explain, Susan, the significance of location data? Can the government map a person’s whereabouts through this metadata?

Susan Landau: Of course. In fact, all it takes is four data points to be 95 percent sure who the person is. I noticed President Obama said no names, but in fact, if you know four locations, because home and work are often unique pairs for most people, 95 percent location of—of times when you have four location points, you know who it is you’re listening to. So, you follow somebody, and they make calls from work every day, and then one day you notice they’ve made some calls from a bar at the end of the day. And then you discover somebody in middle age, somebody who ought to be working, is now making calls only from home. You know they’ve been fired, even though you haven’t listened to any of the content of the calls.

Amy Goodman: I wanted to ask you about the comments of the director of national intelligence, James Clapper, coming under increasing scrutiny over comments he made to the Senate over the government’s surveillance program. In March, Democratic Senator Ron Wyden questioned Clapper about the NSA.

Sen. Ron Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

James Clapper: No, sir.

Sen. Ron Wyden: It does not?

James Clapper: Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.

Amy Goodman: Director of National Intelligence James Clapper is holding his head as he’s responding to questions from Senator Ron Wyden in March. Well, during an interview this week with NBC’s Andrea Mitchell, James Clapper defended his response, saying he had answered the question in the, quote, “least untruthful manner,” unquote. Meanwhile, on Tuesday, Senator Wyden called for public hearings to investigate the scope of the NSA’s surveillance of Americans. Wyden said, quote, “One of the most important responsibilities a Senator has is oversight of the intelligence community. [This] job cannot be done responsibly if Senators [aren’t] getting straight answers to direct questions.” Susan Landau, translate what James Clapper said.

Susan Landau: Well, he said that we’re not getting—that the NSA was not getting data on millions of Americans. But given that Verizon and the other telecos presumably were also sending this information, and they were sending it daily, that does not appear to be true.

Now, what we don’t know, we don’t know a lot of things. One of the things we don’t know is the kind minimization that the NSA did on the data. When you do a criminal wiretap, you’re required to do what’s called minimization. You can listen to the call, but if it’s not the target of the investigation, if it’s not the criminal him or herself, but let’s say their teenage daughter, then you have to shut down the wiretap, and you can pick it up again in a couple of minutes. If it’s the criminal, but they’re talking about going out to buy milk, let’s say, unless you think that’s code for going out to pick up some heroin, you have to shut it down. That’s minimization.

We don’t know several things. First of all, of course, there was a secret interpretation of a law, and that has no place in a democracy. That’s tantamount to secret laws. But we also don’t know what kind of data minimization the NSA was doing, and that’s something that ought to come out in public hearings. That’s very different from exposing sources and methods.

Nermeen Shaikh: Well, the secret court order to obtain Verizon phone records was sought by the FBI under a section of the Foreign Intelligence Surveillance Act that was expanded by thePATRIOT Act. In 2011, Democratic Senator Ron Wyden warned about how the government was interpreting its surveillance powers under Section 215 of the PATRIOT Act.

Sen. Ron Wyden: When the American people find out how their government has secretly interpreted the PATRIOT Act, they are going to be stunned, and they are going to be angry. And they’re going to ask senators, “Did you know what this law actually permits? Why didn’t you know before you voted on it?” The fact is, anyone can read the plain text of the PATRIOT Act, and yet many members of Congress have no idea how the law is being secretly interpreted by the executive branch, because that interpretation is classified. It’s almost as if there were two PATRIOTActs, and many members of Congress have not read the one that matters. Our constituents, of course, are totally in the dark. Members of the public have no access to the secret legal interpretations, so they have no idea what their government believes the law actually means.

Nermeen Shaikh: Susan Landau, that was Democratic Senator Ron Wyden. Could you comment on what he said? He was speaking in 2011.

Susan Landau: Yes. No, I actually had members of the press call me after his speech and say, “What is he talking about in Section 215?” And I literally had no idea, because it did not occur to me, and maybe that’s my naïveté. It did not occur to me that the government would be collecting the metadata under a secret interpretation.

So what Senator Wyden is talking about is that collection of metadata, and what he’s alluding to is how extremely powerful it is. Currently, our laws, our wiretapping laws, which were passed when phones didn’t move, back in the 1960s and ’70s, those wiretap laws protect content, very strongly. You need a wiretap warrant to get at content. But they protect the metadata—the who, the when, the what time, how long a call was for, the location—much less strongly. That needs to be changed. And, in fact, a bill was reported out of the Senate Judiciary Committee, the Electronic Communications Privacy Act—an updated version of the bill was reported out earlier this year. That’s what Senator Wyden is alluding to. The fact that that metadata, now that we carry cellphones, now that payphones essentially don’t exist—there are far fewer payphones than a decade ago, and so one has to rely on cellphones—Senator Wyden is saying that information is very private information. It reveals a remarkable amount about what a person is doing, who they are, whom they associate with, who they spend their nights with, where they are when they travel. All that kind of information is very private, deserves constitutional protection. And yet, under a secret interpretation of the law, it’s in fact being handed over to the government. And that’s what Senator Wyden is saying.

Amy Goodman: Finally, Susan Landau, people like Senator Feinstein are calling for an investigation into what Edward Snowden has done. We’re about to have a debate on whether he is a traitor or a hero. What do you think of what Snowden has done? And what do you think needs to be done? Where should the investigation take place?

Susan Landau: So, the first thing is whether—what do I think of what Edward Snowden has done. I think of myself as a computer scientist, not a policy or legal expert. I don’t know what I would have done in his shoes, but I do know that what he’s done is opened up a public debate about something that should have been public many, many years ago. We can’t have secret interpretations of law in a democracy.

Where do I think things should go? I think there need to be two investigations. One, I think Senator Feinstein is absolutely right, although I would target things a little bit differently. We’ve developed a surveillance-industrial complex, as has been exhibited to the public now, and I think that’s where Senator Feinstein should concentrate. I think it’s time for a Church-type Committee investigation, under perhaps the aegis of the Judiciary Committee, under perhaps Senator Leahy, but we need an examination of the surveillance laws and what we’re doing, why we’re doing it, what was done illegally, and so on. And it needs to be a broad investigation, the same way it was done in the 1970s under the Church Committee.

Amy Goodman: I want to thank you very much, Susan Landau, mathematician, former Sun Microsystems engineer, author of the book Surveillance or Security?: The Risks Posed by New Wiretapping Technologies. She received a Guggenheim Fellowship in 2012. When we come back, a debate on what Edward Snowden has done. Traitor or hero? Stay with us.