NSA's call detail records program

Episode 305 of the Cyberlaw Podcast -- an interview withTravis LeBlanc of the PCLOB

The NSA's effort to use call detail records to spot cross-border terror plots has a long history. It began life in deepest secrecy, became public (and controversial) after Edward Snowden's leaks, and was then "reformed" in the USA Freedom Act. Now it's up for renewal, and the Privacy and Civil Liberties Oversight Board, or PCLOB, has weighed in with a deep report on how the program has functioned – and why NSA has suspended it.

In this episode I interview Travis LeBlanc, a PCLOB Member, about the report and the program. Travis is a highly effective advocate, bringing me around on several issues, including whether the program should be continued and even whether the authority to revive it would be useful. It's a superb guide to a program whose renewal is currently being debated (against a March 15 deadline!) in Congress.

And, uh, asking for a friend: Do the early stages of covid-19 infection make you more susceptible to persuasion?

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Comments

[Sam Gompers]

Court records show the people in government abused this for political spying and are clearly going to get away with it.

What will they do next, knowing they will never be held accountable?

[Tom Dial]

A citation would be helpful. The most obvious abuse, at least recently, concerns FBI use of the dodgy Steele "Dossier" to justify intercepting Carter Page's communications for nearly a year. That has nothing at all to do with the call records database which, if the data is useful, can be justified easily enough on technical grounds despite the fact that it probably should have had more stringent requirements for access, such as a probable cause search warrant.

I haven't read the bill that was just passed, but as far as I know it does not eliminate law enforcement authority to subpoena these "business records" from the carriers.

[Brett Bellmore]

I can't say I've got much confidence in the NSA's claim they stopped.

[Tom Dial]

Why not? The "Snowden Revelations" taken as a whole show that the NSA, while attempting to operate at the limits of its statutory authority (as it arguably should do) developed and implemented reasonably strong internal controls, both computerized and human managed. Much of the press uproar was either manufactured or disingenuously silent about necessary characteristics of the NSA's mission. (For instance, all or nearly all articles ignored the fact that NSA can't not effectively listen to only the foreign side of a conversation between a foreigner and an American, and probably can't listen to an Internet based communication at all without listening, in some sense, to many thousands of others in which they have no interest and quickly discard).

Most of the remainder of the expressed outrage resulted from misunderstandings of the purposes and limits of foreign intelligence collection and analysis - e. g., Angela Merkel, Dilma Roussef, Vladimir Putin, Xi Jinping, and Kim Jong-un are equally legitimate foreign intelligence targets.

A small part of the reported NSA activities exceeded legal limits, by error in specifying targeting information (corrected on discovery), employee misconduct (resulting in disciplinary action), or miscommunication between NSA (and DOJ) management and the FISC (resulting in program modification based on FISC decisions). All or nearly all were self-reported by NSA.

[KHP54]

"probably can’t listen to an Internet based communication at all without listening, in some sense, to many thousands of others "

thereby violating the Government Can Ignore Any Restriction Whatsoever If It Feels It Stymies Their Efforts principle.