Myths and falsehoods on the NSA domestic call-tracking program

On May 11, USA Today reported that the National Security Agency (NSA) had been secretly collecting records of phone calls made by millions of US citizens since 2001. The article reported that the NSA, in cooperation with three major phone companies, "reaches into homes and businesses across the nation by amassing information about the calls of ordinary US citizens–most of whom aren't suspected of any crime" and uses the data "to analyze calling patterns in an effort to detect terrorist activity." The public disclosure of the domestic call tracking program provoked bipartisan criticism and calls for a full congressional investigation. Further, it revived the contentious debate over the NSA's warrantless eavesdropping on US residents' international communications. As the New York Times revealed last year, the president authorized the agency to conduct such surveillance shortly after the Sept. 11, 2001, terrorist attacks, in apparent violation of the Foreign Intelligence Surveillance Act (FISA), which requires court approval in order to conduct domestic electronic surveillance for foreign intelligence purposes. As with the exposure of the warrantless surveillance program in December 2005, media figures and Bush supporters have advanced numerous misleading or false claims in the wake of the news, as documented below. #1: The NSA has access only to phone numbers and call records –not names, addresses or other identifying information In reporting on the NSA call-tracking program, some media figures have emphasized that the phone companies are not providing callers' names and addresses to the agency–only their phone numbers and records of their various calls. Examples include: tCNN national security correspondent David Ensor: The phone companies provide the NSA "the phone numbers they call–not the names, not the addresses of the people they called." [CNN International's "Your World Today," 5/11/06] tNBC senior investigative correspondent Lisa Myers: "The data provided by AT&T, Verizon, and Bell South reportedly includes phone calls made and received but not customers' names and addresses." [NBC's "Today," 5/11/06] tABC chief investigative correspondent Brian Ross: "Officials say the phone records, with no names attached, are fed into NSA computers, programmed to track patterns between the US and places where suspected terrorists might be, such as Afghanistan and Pakistan." [ABC's "World News Tonight," 5/11/06] tFox News host John Gibson: "[T]he NSA is compiling phone calling patterns in an effort to track terrorists here in this country. No addresses or names are reportedly part of that information being collected." [Fox News' "The Big Story" with John Gibson, 5/11/06] tFox News correspondent Carl Cameron: "The data records that the NSA is obtaining do not contain customer names, addresses, or anything about the actual call content." [Fox News' "Special Report" with Brit Hume, 5/11/06] tFox News correspondent Jim Angle: "But others of both parties said this is far different and far less intrusive than actually listening to suspected terrorist communications. In this case, the NSA is reportedly collecting nothing more than phone call records, without any names or addresses." [Fox News' "Special Report" with Brit Hume, 5/11/06] But the original May 11 USA Today article on the program made clear that phone customers' names, addresses, and "other personal information" can "easily" be obtained by cross-referencing their phone numbers with other databases. A May 12 Washington Post article further reported that "the government has many means of identifying account owners, including access to commercial databases from ChoicePoint and LexisNexis." Similarly, some reporters have failed to challenge Republican lawmakers' assertions that the data collected by the NSA is limited to phone numbers. For instance, in a May 12 article, Associated Press staff writer Katherine Shrader uncritically reported Sen. Wayne Allard's (R-CO) claim that "Telephone customers' names, addresses and other personal information have not been handed over to NSA as part of this program." #2: The NSA is only tracking phone calls, not listening to them In describing the specifics of the NSA call-tracking program, certain media figures have claimed that the NSA only captures call records and does not use the data for surveillance. On the May 11 edition of CNN's "Live From...," CNN congressional correspondent Ed Henry reported: "The government appears to be… collecting these records but not actually eavesdropping, not listening in on the calls, an important distinction." On the May 11 edition of Fox News' "Hannity & Colmes," co-host Sean Hannity claimed, "All we're looking at are patterns... we're not looking at the content, we're not listening to people's calls." But in affirmatively claiming that the NSA is not using the data for surveillance, Henry and Hannity are in effect asserting that the NSA's call-tracking program operates independent of the NSA's warrantless domestic eavesdropping program. They offer no support for this claim. Indeed, a May 12 Washington Post article reported that the two programs are directly linked, as the data provided to the NSA by the major phone companies assists the agency in selecting targets for warrantless surveillance. From the May 12 Post article: "Government access to call records is related to the previously disclosed eavesdropping program, sources said, because it helps the NSA choose its targets for listening. The mathematical techniques known as 'link analysis' and 'pattern analysis,' they said, give grounds for suspicion that can result in further investigation." Despite this report, the Post and ABC News conducted a poll on the call-tracking program that asserted that the NSA is not "listening to or recording the conversations," as Media Matters noted. Sixty-three percent of respondents found the program, as misleadingly described, acceptable. #3: The Clinton administration implemented a more intrusive surveillance program Shortly after the disclosure of the NSA's warrantless domestic surveillance program in December 2005, conservative media figures attempted to draw a parallel between the Clinton administration's use of a surveillance program known as Echelon and the warrantless domestic eavesdropping authorized by the Bush administration. In the wake of this new revelation, media have equated the NSA call-tracking operation and Echelon. For instance, a May 12 New York Post editorial claimed that "the program has clear antecedents in a widely rumored surveillance program called Echelon, which was hotly debated across the internet back in 1999–nearly two years before President Bush took office." On the May 12 edition Fox News' "Fox & Friends," co-host Brian Kilmeade said, "This has been happening since 2000. This isn't one man's policy. The foundation was already laid for this six years ago." But in contrast with the Bush administra-tion's surveillance program, the eavesdropping of US residents conducted under Echelon was carried out in compliance with FISA, according to then-CIA Director George J. Tenet. In his Apr. 12, 2002, testimony before the House Intelligence Committee Tenet denied that Echelon was used to spy on US residents without a warrant. He said, "We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department." Then-National Security Agency director Lt. Gen. Michael V. Hayden–currently Bush's nominee for CIA director–also appeared before the committee and testified, "If [an] American person is in the United States of America, I must have a court order before I initiate any collection [of communications] against him or her." By contrast, since the disclosure of the warrantless domestic surveillance program, Bush has asserted–and administration officials such as Hayden have repeated–that he possesses the authority to eavesdrop on the public's communications without FISA approval. Conservative media figures such as Hannity and syndicated columnist Michelle Malkin have gone a step further, however, and claimed that Echelon was more intrusive than the Bush administration's current surveillance activities. On the May 11 "Hannity & Colmes," Hannity said, "Under the Echelon program there is the ability to monitor, as I said, the substance and content.... So it seems odd to me that we have a far more intrusive program that liberals support, and now they're all up in arms about a far less intrusive program [the NSA call-tracking program]." In a May 12 column, Malkin wrote, "The paper [USA Today] admits the kind of data collection involved is not new. The Clinton administration's Echelon program was far more intrusive." As with Hannity's claim that the NSA is not using the phone records data to intercept communications of the public, these assertions rest on the assumption that the data collection program operates independently of the NSA warrantless domestic surveillance program. But as noted above, the Post has reported that the two are directly linked. #4: Only Democrats are criticizing the NSA program In reporting on the NSA data collection program, various media figures have cast the controversy as a purely partisan dispute by suggesting that only Democrats have criticized the program. In fact, a number of prominent Republican congressmen–current and former–have also denounced the program or at least voiced skepticism. Senators Arlen Specter (R-PA) and Lindsey O. Graham (R-SC), and House Majority Leader John Boehner (R-OH) all raised questions and criticism of the program following its disclosure. According to a May 12 USA Today article, Sen. Charles Grassley (R-IA) "questioned why the phone companies would cooperate with the NSA." According to Grassley: "Why are the telephone companies not protecting their customers?... They have a social responsibility to people who do business with them to protect our privacy as long as there isn't some suspicion that we're a terrorist or a criminal or something." On the May 11 edition of "Hannity & Colmes," former House Speaker Newt Gingrich (R-GA) said: "I'm not going to defend the indefensible.... I'm prepared to defend a very aggressive anti-terrorist campaign, and I'm prepared to defend the idea that the government ought to know who's making the calls, as long as that information is only used against terrorists, and as long as the Congress knows that it's under way. But I don't think the way they've handled this can be defended by reasonable people. It is sloppy." On the May 11 edition of MSNBC's "Scarborough Country," host and former Rep. Joe Scarborough (R-FL) said: "Memo to the president and congressional leaders who signed up on this lousy program: We don't trust you anymore." And yet, on the May 11 edition of Fox News' "The Big Story" with John Gibson, homeland defense correspondent Catherine Herridge reported: "The NSA issue dominated the session of the Senate Judiciary Committee today with senior Democrats on this committee saying the new revelation will impact Hayden's confirmation." On the May 11 edition of "Special Report," Fox News chief White House correspondent Carl Cameron–during a "hard news" segment–attacked Democrats for "complaining about the NSA programs without really knowing what they are" and echoed Republicans in saying that "is precisely why so many Republicans say Democrats just aren't serious about security." #5: 'Experts agree' this type of data collection is "legal" A variety of media figures have stated unequivocally that the NSA data collection program is "legal," or that "experts agree" the program is legal. There are, however, a number of experts who have said that the administration might be acting illegally. The New York Times reported on May 12: "Kate Martin, director of the Center for National Security Studies [CNSS], said, 'If they don't get a court order, it's a crime.' She said that while the FBI might be able to get access to phone collection databases by using an administrative subpoena, her reading of federal law was that the NSA would be banned from doing so without court approval. Depending on how it was conducted, it may have also have been a crime." The CNSS also issued a statement featured on its website, stating, "On May 11, 2006, USA Today reported that the NSA has been secretly collecting the phone records of millions of Americans. The President held a news briefing in which he carefully failed to deny that the program exists. Such surveillance, if not authorized by the FISA court, is illegal." A May 12 USA Today article quoted Georgetown University law professor David Cole as saying: "This may well be another example where the Bush administration, in secret, decided to bypass the courts and contravene federal law." However, James Dempsey of the nonprofit Center for Democracy and Technology said several laws appear to apply to the described program. Real-time collection of data would require the NSA to get a warrant either from a criminal court or from the special court created by the Foreign Surveillance Intelligence Act, he said. And if the NSA is collecting historical records, the telecommunications companies face the Electronic Communications Privacy Act and another law that prohibits sharing information without a subpoena or court order, Dempsey added. Nevertheless, on the May 11 broadcast of NBC's "Nightly News," senior investigative correspondent Lisa Myers reported: "Some experts agree that the program, if conducted properly, is legal. But some warn there is also great potential for abuse." Myers failed to note that there are experts who have gone beyond warning of the potential for abuse to challenge the reported program's legality. Similarly, ABC News chief investigative correspondent Brian Ross reported on the May 11 broadcast of "World News Tonight:" "In fact, many experts we talked to today said the program is legal, they believe, based on a US Supreme Court decision that held that phone customers have no expectation of privacy for the phone numbers they dial. What worries some, of course... is what the government does next if they detect what they think is a suspicious pattern." But, while the Supreme Court ruled in Smith v. Maryland (1979) that the use of "pen registers"–devices that record only the numbers dialed and received at a specific phone– is not a violation of Fourth Amendment rights, some legal experts have noted that the NSA's phone data collection program might violate federal statutory law. As George Washington University law professor Orin Kerr explained in a May 11 entry on his blog: "To summarize, my very preliminary sense is that there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute. Of course, all of the statutory questions are subject to the possible argument that Article II trumps those statutes. As I have mentioned before, I don't see the support for the strong Article II argument in existing caselaw, but there is a good chance that the Administration's legal argument in support of the new law will rely on it." On the May 11 edition of MSNBC's "Hardball" with Chris Matthews, Roger Cressey, NBC counterterrorism analyst and former counterterrorism advisor to Presidents Clinton and George W. Bush, claimed that "assembling the database in and of itself is not illegal." Fox News host Bill O'Reilly claimed on the May 11 edition of "The O'Reilly Factor" that "there's nobody who believes that the Bush administration is going to lose any of this stuff in a court of law." #6: NSA program could have prevented 9-11 attacks A number of media figures have suggested that the NSA data collection program could have prevented the Sept. 11, 2001 terrorist attacks had it been in place before then. This same claim was advanced by the Bush administration to defend the NSA's warrantless domestic surveillance program when its existence was publicly disclosed in December 2005. This argument, however, is completely unsubstantiated. As Media Matters noted when Hayden advanced this claim in January, the 9-11 Commission and congressional investigators determined that it was primarily bureaucratic problems–rather than a lack of information–that were responsible for the security breakdown. The Washington Post reported on Jan. 24: "Hayden echoed a claim earlier this month by Vice President Cheney that, if the NSA program had been in place prior to the Sept. 11, 2001, attacks, "it is my professional judgment that we would have detected some of the 9/11 al-Qaida operatives in the United States." Like Cheney, however, Hayden did not mention that the NSA, CIA and FBI had significant information about two of the leading hijackers as early as January 2000 but failed to keep track of them or capitalize on the information, according to the Sept. 11 commission and others. He also did not mention NSA intercepts warning of the attacks the day before, but not translated until Sept. 12, 2001. But Matthews, on the May 11 edition of "Hardball," said to Sen. Ken Salazar (D-CO): "Well, here's where the tire hits the road, Senator. Suppose our authorities had broken up 9/11 the day before, because they noticed telephone traffic which suggested 19 people were about to grab four planes and take them in to buildings. Would that have justified the program if that had happened?" On the May 11 edition of "Special Report" with Brit Hume, Fox News chief Washington correspondent Jim Angle reported: "For instance, if this had been in place before 9/11, and the US had the phone number used by al-Qaida planner Khalid Shaikh Mohammed, it could have searched the database to locate which numbers he was calling in the US, which might have led to the hijackers before they boarded their planes." Angle's suggestion that the program could have provided the NSA with alleged 9-11 mastermind Khalid Shaik Mohammed's phone number, thus leading authorities to discover the 9-11 plot, ignored the fact that the NSA was monitoring Mohammed's phone calls the day before the attacks and captured a conversation between him and lead hijacker Mohammed Atta. But, as Knight Ridder reported on June 7, 2002: "A secretive US eavesdropping agency monitored telephone conversations before Sept. 11 between the suspected commander of the terror attacks and the alleged chief hijacker, but did not share the information with other intelligence agencies, US officials said on May 11." The officials, speaking on condition of anonymity, said the conversations between Khalid Shaikh Mohammed and Mohammed Atta were intercepted by the NSA. The NSA failed to share the intercepts with the CIA or other US intelligence agencies, the officials told Knight Ridder. It also failed to promptly translate some intercepted Arabic-language conversations, a senior intelligence official said. #7: Veracity of USA Today report is in question Some in the media have suggested that the original USA Today report on the NSA's call-tracking program may be unfounded. For instance, on the May 11 edition of "Special Report," host and Fox News Washington managing editor Brit Hume cited the USA Today story and added, "Whether that was actually true or not, it was enough to set off another uproar on Capitol Hill over allegations of domestic spying." Similarly, Fox News senior judicial analyst Andrew Napolitano declared on the May 11 edition of Fox News' "The Big Story" that we need to know the facts about the NSA program. He then said of the USA Today article, "The newspaper is just the newspaper reporter's opinions." In fact, while the Bush administration has not confirmed or denied the substance of the USA Today report, several members of Congress have confirmed the existence of the program. According to a May 11 Bloomberg News Service article, Sen. Trent Lott (R-MS), a member of the Senate Intelligence Committee, disclosed that he had been briefed about the program. Further, on the May 11 edition of PBS' "The NewsHour" with Jim Lehrer, Sen. Kit Bond (R-MO) said, "I'm a member of the subcommittee of the Intelligence Committee that's been thoroughly briefed on this program and other programs."