It’s been a frightening few weeks for journalists concerned with protecting their sources—and for Americans concerned with protecting their privacy. On May 13, the Associated Press revealed that the Justice Department secretly obtained two months of reporters’ call logs. Citing the Espionage Act, which prohibits the disclosure of classified information, the Justice Department had subpoenaed Verizon Wireless for the call logs of more than 20 AP phone lines. Within a week The Washington Post reported that in 2010 the DOJ had subpoenaed emails from Fox News’ chief Washington correspondent James Rosen’s personal Gmail, also with the motive of prosecuting leakers.
The revelations have caused a furor over whether national security interests should trump civil liberties. AP President and CEO Gary Pruitt called the DOJ surveillance an “unprecedented intrusion.” Michael Clemente, Fox News executive vice president of news, released a statement calling the DOJ’s surveillance of Rosen “chilling” and an “outrage.” He wrote, “We will unequivocally defend [Rosen’s] right to operate as a member of what up until now has always been a free press.”
And a Pew survey showed a plurality of voters, 44 percent, disapproved of the DOJ obtaining AP phone records. Thirty-six percent, on the other hand, approved of the department’s obtaining the records.
What’s been largely overlooked, however, is that, subpoenaed call logs aside, the government may be recording your actual phone calls. And your emails. And all that data may be a mouse click, not a subpoena, away.
While that may sound paranoid, it’s been implied by the offhand comments of an NSA insider.
On April 20, 2012, former NSA crypto-mathematician William Binney told Democracy Now! regarding the federal government and US citizens’ private emails, “I believe they have most of them.” In that interview, Binney discussed the Intelligence Community Comprehensive National Cyber-security Initiative Data Center, or “Utah Data Center,” in Bluffdale, Utah, an NSA compound capable of screening domestic telecommunications on the scale of yottabytes, or trillions of terabytes.
Cindy Cohn, legal director at the Electronic Frontier Foundation, tells In These Times via email that a mass surveillance regime such as the one implied by Binney’s comments is entirely realistic and that the NSA may very well have recordings, not just call logs, of Rosen and the AP journalists. Cohn wrote, “I suspect that they keep that information very far away from a regular criminal prosecution where they might have to turn it over to the defendant.”
Added Cohn, “The fact that they sought Mr. Rosen’s emails from Google via a warrant doesn’t tell us whether they also got a wiretap order and listened in to calls.”
Like Cohn, whistleblower J. Kirk Wiebe, a 32-year veteran of the NSA, says that he, personally, finds Binney entirely credible. He is not, however, perturbed. The problem, he says, is not data collection but insufficient oversight over how and when parties from the executive branch can access those recordings and emails. “A lack of checks and balances on certain powers can be abused and will be by human beings,” Wiebe says. “It’s their nature within the positions of power.”
“If the [voice and email] data were protected lock-and-key so that Joe Blow analyst could not look at it without a court order, if we had the protections built in … and the whole process was overseen not just by the executive, who would be in charge of it [but also by the judiciary and Congress] … now you’ve got three legs of government, the checks and balances that are needed,” he says.
Wiebe has allied with fellow whistleblowers Binney, Thomas Drake, Edward Loomis and Diane Roark to call for those checks and balances. Together they have lobbied the offices of Sens. Tom Udall (D-N.M.), Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) to seek surveillance and secrecy reform.
Wiebe and his fellow advocates believe that the government’s seizure of data through third parties, whether Google or Verizon Wireless, is in effect exploiting a legal loophole in the Privacy Protection Act, or PPA, which protects journalists from being subpoenaed to turn over work product (such as recordings) in their possession. The advocates say that the 30-year-old law’s press-protection spirit has been undermined by technological advancements. Today, authorities can access any manner of phone and email data by approaching private telecom and tech companies, and that data is not considered to be protected by the PPA because it is not in the journalist’s “possession.”
In the Rosen case, for example, D.C. District Judge Royce Lamberth ruled that the DOJ’s obtaining relevant information from a Gmail account without notifying the journalist beforehand was legally analogous to seizing a package in transit at a FedEx store location. Legal precedent now holds that being secure in one’s “papers and effects,” as the Fourth Amendment has it, does not include personal information held by third parties.
Absent a contemporary, functioning form of the Privacy Protection Act, “sources will likely now be wary of even answering the phone out of concern that they’ll show up in toll records sought in a leaks investigation,” warns ACLU Legislative Counsel Gabriel Rottman.
The Justice Department has assured the AP that its new compendium of AP national security desk sources will not find its way into use by other DOJ leak investigations. Will the public and the press buy that?
The ACLU’s Rottman is skeptical. “Much information that is completely unrelated to the [AP] underwear bomber investigation was captured [by DOJ], and there are very few restrictions on its use by the FBI in unrelated investigations,” he says.
Wiebe’s outlook is equally dim. “Unfortunately, NSA and other organizations have a history of nontrust, of taking their power and turning it against the American people,” he says. “It’s happened before.”
Wiebe forwarded me a wish list for federal reforms that he and fellow whistleblowers say will protect the First and Fourth Amendments and lend the PPA teeth by bringing the concept of “possession” up to date. It includes a requirement by “communications service providers to report annually to their customers full-disclosure information … identifying what information U.S. Government entities [required] them to provide to law enforcement and intelligence community entities outside the context of duly initiated investigations based on probable cause.” That might not make compromised, past anonymous sources less skittish. But it could encourage future sources to talk.
UPDATE: Citing an equally erroneous CNN transcript, this story originally claimed that former FBI agent Tim Clemente said on May 1, 2013, “Welcome to America. All of that stuff [in reference to private phone recordings] is being captured as we speak whether we know it or like it or not.” That statement was actually made by criminal defense attorney and legal analyst Mark Geragos. The story has been updated to reflect.
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Tyler Bass is a native of Danville, Virginia and a journalist long focused on espionage, cybersecurity and foreign policy. Bass has contributed to Disinformation, Main Justice and The Buffalo Beast. When he’s not working, Bass likes taking in satire, grocery shopping in Columbia Heights, and carrying his son on his shoulders (for as long as that can last). Follow him on Twitter @TylerBass.
