USA TODAY
NSA has massive database of Americans' phone calls
Updated 5/11/2006 12:30 AM ET
By Leslie Cauley
The National Security Agency has been secretly collecting the phone
call
records of tens of millions of Americans, using data provided by
AT&T,
Verizon and BellSouth, people with direct knowledge of the
arrangement
told USA TODAY.
The NSA program reaches into homes and businesses across the nation
by amassing information about the calls of ordinary Americans -- most
of whom aren't suspected of any crime. This program does not involve
the NSA listening to or recording conversations. But the spy agency
is
using the data to analyze calling patterns in an effort to detect
terrorist
activity, sources said in separate interviews.
"It's the largest database ever assembled in the world," said one
person,
who, like the others who agreed to talk about the NSA's activities,
declined to be identified by name or affiliation. The agency's goal
is "to
create a database of every call ever made" within the nation's
borders,
this person added.
For the customers of these companies, it means that the government
has
detailed records of calls they made -- across town or across the
country
-- to family members, co-workers, business contacts and others.
The three telecommunications companies are working under contract
with the NSA, which launched the program in 2001 shortly after the
Sept. 11 terrorist attacks, the sources said. The program is aimed at
identifying and tracking suspected terrorists, they said.
The sources would talk only under a guarantee of anonymity because
the NSA program is secret.
Air Force Gen. Michael Hayden, nominated Monday by President Bush
to become the director of the CIA, headed the NSA from March 1999
to April 2005. In that post, Hayden would have overseen the agency's
domestic call-tracking program. Hayden declined to comment about the
program.
The NSA's domestic program, as described by sources, is far more
expansive than what the White House has acknowledged. Last year,
Bush said he had authorized the NSA to eavesdrop -- without warrants
-- on international calls and international e-mails of people
suspected of
having links to terrorists when one party to the communication is in
the
USA. Warrants have also not been used in the NSA's efforts to create
a
national call database.
In defending the previously disclosed program, Bush insisted that the
NSA was focused exclusively on international calls. "In other words,"
Bush explained, "one end of the communication must be outside the
United States."
As a result, domestic call records -- those of calls that originate
and
terminate within U.S. borders -- were believed to be private.
Sources, however, say that is not the case. With access to records of
billions of domestic calls, the NSA has gained a secret window into
the
communications habits of millions of Americans. Customers' names,
street addresses and other personal information are not being handed
over as part of NSA's domestic program, the sources said. But the
phone numbers the NSA collects can easily be cross-checked with other
databases to obtain that information.
Don Weber, a senior spokesman for the NSA, declined to discuss the
agency's operations. "Given the nature of the work we do, it would be
irresponsible to comment on actual or alleged operational issues;
therefore, we have no information to provide," he said. "However, it
is
important to note that NSA takes its legal responsibilities
seriously and
operates within the law."
The White House would not discuss the domestic call-tracking program.
"There is no domestic surveillance without court approval," said Dana
Perino, deputy press secretary, referring to actual eavesdropping.
She added that all national intelligence activities undertaken by the
federal government "are lawful, necessary and required for the
pursuit
of al-Qaeda and affiliated terrorists." All government-sponsored
intelligence activities "are carefully reviewed and monitored,"
Perino
said. She also noted that "all appropriate members of Congress have
been briefed on the intelligence efforts of the United States."
The government is collecting "external" data on domestic phone calls
but is not intercepting "internals," a term for the actual content
of the
communication, according to a U.S. intelligence official familiar
with
the program. This kind of data collection from phone companies is not
uncommon; it's been done before, though never on this large a scale,
the
official said. The data are used for "social network analysis," the
official
said, meaning to study how terrorist networks contact each other and
how they are tied together.
Carriers uniquely positioned
AT&T recently merged with SBC and kept the AT&T name. Verizon,
BellSouth and AT&T are the nation's three biggest telecommunications
companies; they provide local and wireless phone service to more than
200 million customers.
The three carriers control vast networks with the latest
communications
technologies. They provide an array of services: local and
long-distance
calling, wireless and high-speed broadband, including video. Their
direct
access to millions of homes and businesses has them uniquely
positioned
to help the government keep tabs on the calling habits of Americans.
Among the big telecommunications companies, only Qwest has refused
to help the NSA, the sources said. According to multiple sources,
Qwest
declined to participate because it was uneasy about the legal
implications
of handing over customer information to the government without
warrants.
Qwest's refusal to participate has left the NSA with a hole in its
database. Based in Denver, Qwest provides local phone service to 14
million customers in 14 states in the West and Northwest. But AT&T
and Verizon also provide some services -- primarily long-distance and
wireless -- to people who live in Qwest's region. Therefore, they can
provide the NSA with at least some access in that area.
Created by President Truman in 1952, during the Korean War, the NSA
is charged with protecting the United States from foreign security
threats. The agency was considered so secret that for years the
government refused to even confirm its existence. Government insiders
used to joke that NSA stood for "No Such Agency."
In 1975, a congressional investigation revealed that the NSA had been
intercepting, without warrants, international communications for more
than 20 years at the behest of the CIA and other agencies. The spy
campaign, code-named "Shamrock," led to the Foreign Intelligence
Surveillance Act (FISA), which was designed to protect Americans from
illegal eavesdropping.
Enacted in 1978, FISA lays out procedures that the U.S. government
must follow to conduct electronic surveillance and physical searches
of
people believed to be engaged in espionage or international terrorism
against the United States. A special court, which has 11 members, is
responsible for adjudicating requests under FISA.
Over the years, NSA code-cracking techniques have continued to
improve along with technology. The agency today is considered expert
in the practice of "data mining" -- sifting through reams of
information in
search of patterns. Data mining is just one of many tools NSA
analysts
and mathematicians use to crack codes and track international
communications.
Paul Butler, a former U.S. prosecutor who specialized in terrorism
crimes, said FISA approval generally isn't necessary for government
data-mining operations. "FISA does not prohibit the government from
doing data mining," said Butler, now a partner with the law firm Akin
Gump Strauss Hauer & Feld in Washington, D.C.
The caveat, he said, is that "personal identifiers" -- such as names,
Social Security numbers and street addresses -- can't be included as
part
of the search. "That requires an additional level of probable
cause," he
said.
The usefulness of the NSA's domestic phone-call database as a
counterterrorism tool is unclear. Also unclear is whether the
database
has been used for other purposes.
The NSA's domestic program raises legal questions. Historically, AT&T
and the regional phone companies have required law enforcement
agencies to present a court order before they would even consider
turning over a customer's calling data. Part of that owed to the
personality of the old Bell Telephone System, out of which those
companies grew.
Ma Bell's bedrock principle -- protection of the customer -- guided
the
company for decades, said Gene Kimmelman, senior public policy
director of Consumers Union. "No court order, no customer information
-- period. That's how it was for decades," he said.
The concern for the customer was also based on law: Under Section
222 of the Communications Act, first passed in 1934, telephone
companies are prohibited from giving out information regarding their
customers' calling habits: whom a person calls, how often and what
routes those calls take to reach their final destination. Inbound
calls, as
well as wireless calls, also are covered.
The financial penalties for violating Section 222, one of many
privacy
reinforcements that have been added to the law over the years, can be
stiff. The Federal Communications Commission, the nation's top
telecommunications regulatory agency, can levy fines of up to
$130,000
per day per violation, with a cap of $1.325 million per violation.
The
FCC has no hard definition of "violation." In practice, that means a
single "violation" could cover one customer or 1 million.
In the case of the NSA's international call-tracking program, Bush
signed
an executive order allowing the NSA to engage in eavesdropping
without
a warrant. The president and his representatives have since argued
that
an executive order was sufficient for the agency to proceed. Some
civil
liberties groups, including the American Civil Liberties Union,
disagree.
Companies approached
The NSA's domestic program began soon after the Sept. 11 attacks,
according to the sources. Right around that time, they said, NSA
representatives approached the nation's biggest telecommunications
companies. The agency made an urgent pitch: National security is at
risk, and we need your help to protect the country from attacks.
The agency told the companies that it wanted them to turn over their
"call-detail records," a complete listing of the calling histories
of their
millions of customers. In addition, the NSA wanted the carriers to
provide updates, which would enable the agency to keep tabs on the
nation's calling habits.
The sources said the NSA made clear that it was willing to pay for
the
cooperation. AT&T, which at the time was headed by C. Michael
Armstrong, agreed to help the NSA. So did BellSouth, headed by F.
Duane Ackerman; SBC, headed by Ed Whitacre; and Verizon, headed
by Ivan Seidenberg.
With that, the NSA's domestic program began in earnest.
AT&T, when asked about the program, replied with a comment
prepared for USA TODAY: "We do not comment on matters of national
security, except to say that we only assist law enforcement and
government agencies charged with protecting national security in
strict
accordance with the law."
In another prepared comment, BellSouth said: "BellSouth does not
provide any confidential customer information to the NSA or any
governmental agency without proper legal authority."
Verizon, the USA's No. 2 telecommunications company behind AT&T,
gave this statement: "We do not comment on national security matters,
we act in full compliance with the law and we are committed to
safeguarding our customers' privacy."
Qwest spokesman Robert Charlton said: "We can't talk about this.
It's a
classified situation."
In December, The New York Times revealed that Bush had authorized
the NSA to wiretap, without warrants, international phone calls and
e-mails that travel to or from the USA. The following month, the
Electronic Frontier Foundation, a civil liberties group, filed a
class-action
lawsuit against AT&T. The lawsuit accuses the company of helping the
NSA spy on U.S. phone customers.
Last month, U.S. Attorney General Alberto Gonzales alluded to that
possibility. Appearing at a House Judiciary Committee hearing,
Gonzales
was asked whether he thought the White House has the legal authority
to monitor domestic traffic without a warrant. Gonzales' reply: "I
wouldn't rule it out." His comment marked the first time a Bush
appointee publicly asserted that the White House might have that
authority.
Similarities in programs
The domestic and international call-tracking programs have things in
common, according to the sources. Both are being conducted without
warrants and without the approval of the FISA court. The Bush
administration has argued that FISA's procedures are too slow in some
cases. Officials, including Gonzales, also make the case that the USA
Patriot Act gives them broad authority to protect the safety of the
nation's citizens.
The chairman of the Senate Intelligence Committee, Sen. Pat Roberts,
R-Kan., would not confirm the existence of the program. In a
statement,
he said, "I can say generally, however, that our subcommittee has
been
fully briefed on all aspects of the Terrorist Surveillance Program.
... I
remain convinced that the program authorized by the president is
lawful
and absolutely necessary to protect this nation from future attacks."
The chairman of the House Intelligence Committee, Rep. Pete
Hoekstra, R-Mich., declined to comment.
One company differs
One major telecommunications company declined to participate in the
program: Qwest.
According to sources familiar with the events, Qwest's CEO at the
time,
Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest
didn't need a court order -- or approval under FISA -- to proceed.
Adding to the tension, Qwest was unclear about who, exactly, would
have access to its customers' information and how that information
might be used.
Financial implications were also a concern, the sources said.
Carriers
that illegally divulge calling information can be subjected to heavy
fines.
The NSA was asking Qwest to turn over millions of records. The fines,
in the aggregate, could have been substantial.
The NSA told Qwest that other government agencies, including the FBI,
CIA and DEA, also might have access to the database, the sources
said.
As a matter of practice, the NSA regularly shares its information --
known as "product" in intelligence circles -- with other intelligence
groups. Even so, Qwest's lawyers were troubled by the expansiveness
of
the NSA request, the sources said.
The NSA, which needed Qwest's participation to completely cover the
country, pushed back hard.
Trying to put pressure on Qwest, NSA representatives pointedly told
Qwest that it was the lone holdout among the big telecommunications
companies. It also tried appealing to Qwest's patriotic side: In one
meeting, an NSA representative suggested that Qwest's refusal to
contribute to the database could compromise national security, one
person recalled.
In addition, the agency suggested that Qwest's foot-dragging might
affect
its ability to get future classified work with the government. Like
other
big telecommunications companies, Qwest already had classified
contracts and hoped to get more.
Unable to get comfortable with what NSA was proposing, Qwest's
lawyers asked NSA to take its proposal to the FISA court. According
to
the sources, the agency refused.
The NSA's explanation did little to satisfy Qwest's lawyers. "They
told
(Qwest) they didn't want to do that because FISA might not agree with
them," one person recalled. For similar reasons, this person said,
NSA
rejected Qwest's suggestion of getting a letter of authorization
from the
U.S. attorney general's office. A second person confirmed this
version
of events.
In June 2002, Nacchio resigned amid allegations that he had misled
investors about Qwest's financial health. But Qwest's legal questions
about the NSA request remained.
Unable to reach agreement, Nacchio's successor, Richard Notebaert,
finally pulled the plug on the NSA talks in late 2004, the sources
said.
Contributing: John Diamond
+++++++++++++++++++++++++++++++++++++
SIDEBAR:
Questions and answers about the NSA
phone record collection program
Updated 5/11/2006 12:31 AM ET
The National Security Agency has been collecting domestic calling
records from major telecommunications companies, sources told USA
TODAY. Answers to some questions about the program, as described
by those sources:
Q: Does the NSA's domestic program mean that my calling records
have been secretly collected?
A: In all likelihood, yes. The NSA collected the records of billions
of
domestic calls. Those include calls from home phones and wireless
phones.
Q: Does that mean people listened to my conversations?
A: Eavesdropping is not part of this program.
Q: What was the NSA doing?
A: The NSA collected "call-detail" records. That's telephone industry
lingo for the numbers being dialed. Phone customers' names, addresses
and other personal information are not being collected as part of
this
program. The agency, however, has the means to assemble that sort of
information, if it so chooses.
Q: When did this start?
A: After the Sept. 11 attacks.
Q: Can I find out if my call records were collected?
A: No. The NSA's work is secret, and the agency won't publicly
discuss
its operations.
Q: Why did they do this?
A: The agency won't say officially. But sources say it was a way to
identify, and monitor, people suspected of terrorist activities.
Q: But I'm not calling terrorists. Why do they need my calls?
A: By cross-checking a vast database of phone calling records, NSA
experts can try to pick out patterns that help identify people
involved in
terrorism.
Q: How is this different from the other NSA programs?
A: NSA programs have historically focused on international
communications. In December, The New York Times disclosed that
President Bush had authorized the NSA to eavesdrop -- without
warrants -- on international phone calls to and from the USA. The
call-collecting program is focused on domestic calls, those that
originate
and terminate within U.S. borders.
Q: Is this legal?
A: That will be a matter of debate. In the past, law enforcement
officials had to obtain a court warrant before getting calling
records.
Telecommunications law assesses hefty fines on phone companies that
violate customer privacy by divulging such records without warrants.
But in discussing the eavesdropping program last December, Bush said
he has the authority to order the NSA to get information without
court
warrants.
Q: Who has access to my records?
A: Unclear. The NSA routinely provides its analysis and other
cryptological work to the Pentagon and other government agencies.
Contributing: Leslie Cauley
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