Since the story about the NSA’s secret compilation of Americans’ phone call metadata broke earlier this month, the overwhelming response from government has been "nobody is listening to your telephone calls" — that the data being collected is limited to things like phone numbers and call durations. Well, perhaps unsurprisingly, it now looks like the feds might actually be listening. Or at the very least, they might not require a court order just to do so.
"We heard precisely the opposite at the briefing the other day."
CNET has posted text from a Thursday House Judiciary Committee hearing at which FBI director Robert Mueller (pictured above) testified that the government would need a "special, particularized order" from the secret FISA court in order to target a particular individual’s phone for a wiretap. After checking to make sure the details weren’t classified, Rep. Jerrold Nadler (D-NY) challenged Mueller's statement, saying, "we heard precisely the opposite at the briefing the other day. We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that… In other words, what you just said is incorrect. So there’s a conflict."
Update: There is some debate over the scope of Nadler's revelation. The Congressman's reference is to "specific information," and not necessarily active listening to calls made on a targeted phone. Nevertheless, Nadler is adamant that he "asked the question both times," and that intelligence officials have offered up two opposing answers.
Last year, the Senate voted to extend the FISA Amendments Act of 2008, which expanded the government's ability to conduct warrantless surveillance on domestic communications. While the FISA court’s proceedings are being held in secret, in recent days, the government has shown some willingness to open up, and is now considering whether to declassify the leaked Verizon court order responsible for raising national awareness of the phone metadata program. It has also allowed companies like Facebook and Microsoft to publish the number of requests they receive for user data, but only in large intervals and only as long as it’s obfuscated by being included as part of the total number of law enforcement requests. Google and Twitter have taken a more principled stance, arguing that the deal would be "a step back" for users.
Update 2: In a statement provided to BuzzFeed, Rep. Nadler has backed away from his claims; "I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans' phone calls without a specific warrant."
Update 3: The Office of the Director of National Intelligence (ODNI) has issued a response to the weekend's reports, including this one, denying that individual analysts can eavesdrop on phone conversations without a warrant or that it briefed Congress to that effect. The full text of the statement is below:
"The statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect and was not briefed to Congress. Members have been briefed on the implementation of Section 702, that it targets foreigners located overseas for a valid foreign intelligence purpose, and that it cannot be used to target Americans anywhere in the world."