Telecommunications Timewarp

by emptywheel

When I beat up on Jason Leopold for some confusion in an article on domestic spying, I keyed on one detail. He was claiming Bush set up the program Risen and Lichtblau had revealed before 9/11.

Still, one thing that appears to be indisputable is that the NSA surveillance began well before 9/11 and months before President Bush claims Congress gave him the power to use military force against terrorist threats, which Bush says is why he believed he had the legal right to bypass the judicial process.

But he based that claim on two things. (He also quoted former NSA encryption specialists who appeared to be referring to a different kind of surveillance.) A Slate article that quoted telecom executives saying the NSA started collecting call data before 9/11.

A former telecom executive told us that efforts to obtain call details go back to early 2001, predating the 9/11 attacks and the president's now celebrated secret executive order.

And a Transitions 2001 document, dated December 2000, saying that NSA had to "live on the network."

The volumes and routing of data make finding and processing nuggets of intelligence information more difficult. To perform both its offensive and defensive missions, NSA must "live on the network."

I was particularly confused how a December 2000 document--from before Bush was President was evidence that Bush ordered domestic surveillance before 9/11.

I raise these details because I had a bit of deja vu when reading the Bloomberg article reporting a plaintiff's lawyer stating:

"The Bush Administration asserted this became necessary after 9/11," plaintiff's lawyer Carl Mayer said in a telephone interview. "This undermines that assertion."

As with the Leopold article, this Bloomberg article cites something that predates Bush's presidency as evidence that this program predates 9/11.

The NSA initiative, code-named ``Pioneer Groundbreaker,'' asked AT&T unit AT&T Solutions to build exclusively for NSA use a network operations center which duplicated AT&T's Bedminster, New Jersey facility, the court papers claimed. That plan was abandoned in favor of the NSA acquiring the monitoring technology itself, plaintiffs' lawyers Bruce Afran said.

The NSA says on its Web site that in June 2000, the agency was seeking bids for a project to ``modernize and improve its information technology infrastructure.'' The plan, which included the privatization of its ``non-mission related'' systems support, was said to be part of Project Groundbreaker.

The NSA solicited bids for the physical infrastructure of this in 2000. And, well, sure, 2000 is definitely before 9/11. But if I remember correctly, a guy named Clinton was President in 2000.

Now I'm still looking for Bush comments on the collection of call data via the switches, as distinct from his comments on tapping calls between the US and Pakistan. Has he commented directly on the call data collection?

Update: Here's an excerpt of Bush's radio address following the USAT article.

This week, new claims have been made about other ways we are tracking down al Qaeda to prevent attacks on America.  It is important for Americans to understand that our activities strictly target al Qaeda and its known affiliates.  Al Qaeda is our enemy, and we want to know their plans. The intelligence activities I have authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat.  The privacy of all Americans is fiercely protected in all our activities.   The government does not listen to domestic phone calls without court approval.  We are not trolling through the personal lives of millions of innocent Americans.  Our efforts are focused on links to al Qaeda terrorists and its affiliates who want to harm the American people.

Bush says the activities strictly target Al Qaeda (which, given how he ignored and denied the existence of Al Qaeda before 9/11, suggests post-9/11). But he doesn't say anything about when or how he authorized this. It seems the big question, regarding this, is why they started data mining before Bush believed in Al Qaeda??

But I suspect there is a distinction that is important. There are multiple domestic spying programs we know of at this point. Many of them (though not all--in some cases they're using plain old physical surveillance) rely on having access to our communications data. That is, getting access from the switches is the physical condition that permits a lot of the data mining and tapping based on data mining that get more directly into spying.

And it appears the collection of call data may have been dreamt up under Clinton. It was executed under Bush, with some changes from the Clinton-era plan (though I can't tell whether those changes are more or less intrusive). And one of those changes may have been the decision to data mine the data. From the Slate article again:

The source, who asked not to be identified so as not to out his former company, reports that the NSA approached U.S. carriers and asked for their cooperation in a "data-mining" operation, which might eventually cull "millions" of individual calls and e-mails.

That is, in the implementation that occured in early 2001, the NSA had data mining in mind. But this is a detail we need to clarify.

Now don't get me wrong. I don't like the fact that the NSA is vacuuming up all the digital communication data in the country and providing it to the NSA. I like even less that Bush has used that data to pursue people he determines are a threat.

But it's also important to maintain the distinctions between the the different steps of the domestic surveillance programs. Apparently, a precursor to Bush's spying was the agreement with phone companies (some with contracts, some without) to let the NSA access their call data via their switches. The foundation (the RFP, anyway) for this agreement apparently preceded the Bush administration. Which suggests there was some perceived reason to do so, though even this seems to violate regulations regarding pen registers. BushCo may have expanded on the use of that data, to incorporate data mining (that is, Bush went from the plan for the hardware to using that hardware to collect information). And then, after the NSA started collecting our phone data, and after 9/11, BushCo put it to use that pretty clearly violates FISA, data mining the data to pick which phone calls to monitor.

Comments

[John Casper]

It seems the big question, regarding this, is why they started data mining before Bush believed in Al Qaeda??
I agree ew. If they were, why didn't they stop 9/11? Bush's rationale, so far, has been that if these programs had been in place before 9/11, he could have stopped it.

[emptywheel]

I agree, John Casper, but I think we probably need more details about what happened when. For example, was the datamining component part of the plan from the Clinton years? Or was it something David Addington thought would be "creative"?

And one more thing. Even if it was datamining in February 2001, it probably didn't know what it was datamining for (not least because it didn't believe in AQ). Which means datamining, by itself, didn't reveal the terrorists. Which means now they're imposing data profiles onto their dataset, which doesn't really play to the advantage of datamining.

[mainsailset]

2000 Clinton would have perceived AQ a threat but Feb '01 Bush's determination to refocus on state to state warfare would lead me to think he would have reset the surveillance from AQ to Iraq ... Iran ... or Korea thus missing an AQ heads up. Am reading Suskind's book and it is so evident that Cheney has a truly singular mindset. To this day I think he can only internalize AQ by associating it with a state and that is duh simply why he will never get it.

[Mimikatz]

It is also possible that the Bush Regime so expanded the reach of the program that by 8/01 they already had more data than they could handle. Remember Sybil Edmonds and the translations being behind. Whatever you think of some of her charges, she must be right that they had far more info than they could digest.

Particularly if Bush/Cheney didn't know what they were looking for, they would have had far more info than could be processed, and the weak link in all this has always been the ability to translate calls once you do figure out who to listen to.

One reason for some of their misdirection (opposing the 9/11 Commission, going after the NYT) may be that someone did have some inkling before 9/11, or it just may be that they had no inkling and went paranoid to the other extreme afterwards. That seems more likely to me.

One of the real shortcomings of these people is their refusal to admit that they may not know everything and have everything figured out correctly. This pathological certitude seems characteristic of both Addington and Cheney.

Truly, some mental flexibility and especially the capacity to admit possibly being wrong seem to be prime qualifications for top office.

[Sara]

If Clinton authorized something in early 2000, it was probably in response to the Millennium Plots which had it worked would have blown up the Jordan tourist Hotel, the tourists on the Jordan River, The Sullivans in the port in Yemen, and LA international airport (or at least that is what we know). For such geographically distributed attacks to occur, clearly communications would be necessary -- Canada, Yemen, Jordan, US and probably Pakistan.

I would imagine that anyone trying to build on the intelligence gained in the Millennium Plot as they unwound it would have focused on the international switches, and how they might be watched, or indeed used to thwart an attack. Clark suggest as much in "Against all Enemies" -- Clinton apparently ordered up a thoroughgoing analysis of plot and response. If he also ordered up the development of new resources -- we don't officially know that. But I am thinking about that flap when Sandy Berger knowingly or unknowingly slipped a draft of the after action report out of the files at the National Archives. The stuff we know is like a 2000 piece jig saw, and we don't even have the box cover picture.

[John Casper]

OfT: FDL reporting/scooping that Lieberman called a hurried PC at 1 EST today. Jane Hamsher will cover. Perhaps he is announcing a run as an independent?

[JohnLopresti]

Check this marvelously utilitarian page in a related matter, which likely in some of the meticulously captioned and sized exhibits might provide research materials, ew. It seems your balanced chronicler's eye could benefit this field.

Broadly, my recollection is Fitzgerald went to the papers after the first WTC bomb episode's ringleader was jailed, and decried the reprioritization of research capabilities, warning AQ was viable even without that incident's ringleader, and that the administration and its intell arm should delve much more instead of losing interest.

Republicans in congress were bent on disabling the second term Democratic presidency, given Gingrich's embarrassment and exit from the inside the beltway scene in the late 1990s, but the retributive spirit persisted. That political history was still scintillating last week as some of the TX countergerrymander was sent back to TX for yet another re-do.

My sense was that datamining science was developing in the late 1990s, and congress was still tossing CALEA around as a nearly refined concept, ignoring the patent quaintness and antiquity of the FISC construct in a new era with internet traffic volume doubling every fiscal quarter; plus, economists were well aware that the free ride of executives was near a crash, as technology and other corporate prospecti became only slightly more serious reading than classic comicbooks.

We can improve the historywriting if you pursue this project. Like some of the work of the freelance reporter you cite at the outset, the link I provided at the first paragraph here is one to review with the critic's objectivity, as usual.

Center for Democracy and Technology's posted material is scattered in presentation; here is a germane page.

On some of the comments by MK, check the last paragraph of this article about the banking datamining report at the Wall Street Journal: it turns out what the administration did was a choreographed leak, 1x2x3 or some such, whereby the Pres and VP could complain once again NYT had published stuff it oughtn't-of, but, as the SFChron reports, the identical declassified report was gifted to WSJ, which was how WSJ published the story simultaneously with NYT. The WSJ quote in the SFChron article may be somewhat revealing, but maybe complicit hype: an admission that WSJ was the foil for the US House of Reps to vote to scold the naughty media especially NYT.

[emptywheel]

I think people (here and elsewhere) are making a few assumptions that we don't have evidence to support.

First, that if Clinton did this, it was in response to AQ. If you read through the document that Leopold quoted (as did Slate, which was first to this story), it makes clear that the "physical presence" was required by the change in technology--it had nothing specific to do with AQ. Simple taps were no longer an option so the NSA needed a way to get the packets of information themselves. That's part of my point here--we need to discern what the underlying "need" was an debate that. And there seems to have been a technical argument made for getting on the switches.

Second, we don't know when Bush started datamining all the data he was getting from the switches, nor do we know how or why he was datamining it. That is, we don't know they were even datamining this for signs of terrorists yet, before 9/11.

And finally, even if they were datamining, that doesn't mean they were tapping based on that datamining. That is, they might have established a pattern that looked like a terrorist. But we don't know (and there's some evidence to suggest the contrary) that they were tapping based on the patterns they were seeing in the data. Therefore, there's little reason yet to believe this info (as opposed to old-style taps and foreign eavesdropping) was the info that wasn't translated in timely fashion.

That's the whole point here--we keep conflating the three levels of this program, which doesn't help us understand it and isn't going to help us fight it. So just to understand there are three levels, at least, to the program:

• The physical detour of the switches to allow the NSA to access the call data (vacuuming up the data)
• The data mining of that call data to try to find patterns that might reveal a terrorist threat
• The eavesdropping on phone and email of select individuals after having identified them by using the data mining described in step 2

Neither the lawyer in the AT&T case, nor anything else we've seen thus far, alleges that step three happened in February 2001. And only one piece of data suggests even step two had happened by that point.

[Chris Loosley]

JohnLopresti wrote that "datamining science was developing in the late 1990s ... in a new era with internet traffic volume doubling every fiscal quarter"

It may be a moot point as far as this discussion is concerned, but in the interests of accuracy, the claim that Internet traffic was doubling every quarter during the 1990's is a myth. It was convincingly debunked in November 2000 by Andrew Odlyzko in his Information Impacts Magazine paper, Internet growth: Myth and reality, use and abuse". The abstract reads:

Actual Internet traffic growth rates of 100 percent per year are considerably less than the much-ballyhooed doubling every 3 or 4 months. But even these observed rates are still unprecedented and should be provoking new ways of planning.

Odlyzko points out that the basis for the myth seems to be the fact that "such growth rates did prevail for a short period during 1995 and 1996." For a thorough analysis of how the myth originated and was propagated, see Section 3 of his 2003 ITCOM paper Internet traffic growth: Sources and implications.