Name of NSA Domestic Spying Programme: Stellar Wind

Just in case you missed it, the name of the NSA’s domestic spying operations was revealed in mid-December by Newsweek: Stellar Wind. The main article about it was actually focused on one of the Whistleblowers used for the famous New York Times pieces just over three years ago, Tom Tamm.

Anyway this is the description of the programme:

The NSA identified domestic targets based on leads that were often derived from the seizure of Qaeda computers and cell phones overseas. If, for example, a Qaeda cell phone seized in Pakistan had dialed a phone number in the United States, the NSA would target the U.S. phone number—which would then lead agents to look at other numbers in the United States and abroad called by the targeted phone. Other parts of the program were far more sweeping. The NSA, with the secret cooperation of U.S. telecommunications companies, had begun collecting vast amounts of information about the phone and e-mail records of American citizens. Separately, the NSA was also able to access, for the first time, massive volumes of personal financial records—such as credit-card transactions, wire transfers and bank withdrawals—that were being reported to the Treasury Department by financial institutions. These included millions of “suspicious-activity reports,” or SARS, according to two former Treasury officials who declined to be identified talking about sensitive programs. (It was one such report that tipped FBI agents to former New York governor Eliot Spitzer’s use of prostitutes.) These records were fed into NSA supercomputers for the purpose of “data mining”—looking for links or patterns that might (or might not) suggest terrorist activity.

So, no surprises there.

There was also a supplementary article in Newsweek revealing what the visit-to-Ashcroft-in-hospital controversy was about:

Two knowledgeable sources tell NEWSWEEK that the clash erupted over a part of Bush’s espionage program that had nothing to do with the wiretapping of individual suspects. Rather, Comey and others threatened to resign because of the vast and indiscriminate collection of communications data. These sources, who asked not to be named discussing intelligence matters, describe a system in which the National Security Agency, with cooperation from some of the country’s largest telecommunications companies, was able to vacuum up the records of calls and e-mails of tens of millions of average Americans between September 2001 and March 2004.

Again, that’s hardly a surprise either.

What did amaze me is that I found a very, very interesting commentary on this with some very well informed speculation about what the mysterious John Yoo memo that authorised Stellar Wind after 9/11:

So how could Yoo—or anyone—conceivably have argued that Stellar Wind didn’t trigger FISA? One possibility is a very strange argument offered by George Terwilliger, a former deputy attorney general under George Bush Sr. A 2006 article on the data mining program that appeared in the conservative National Review quotes Terwilliger as follows:

“I think it’s fair to say that the statutes contemplate the transfer of this generic type of data much more on a case-by-case rather than a wholesale basis,” he says, meaning that the statutes call for a court order only in cases when the government is making a targeted request for information. But, he adds, “I don’t see anything in the statute that forbids such a wholesale turnover.”

Terwilliger also happens to be Alberto Gonzales’ attorney and has been a prominent defender of the administration’s surveillance policies. It seems entirely possible that the odd argument Terwilliger offered National Review might echo the justifications that his fellow Federalist Society member John Yoo developed while at OLC.

How might such an argument have worked? Here it’s necessary to look a bit more closely at FISA’s complex, overlapping definitions of “electronic surveillance.” One way to trigger the definition is by “intentionally targeting” a “particular, known United States person”—no problem there if data was swept up indiscriminately and en masse. Two other prongs of the definition cover the live, realtime interception of communications contents as they’re moving on a wire or through the air. There’s precious little wiggle-room here, but it’s conceivable that the kind of “metadata” gathered in the data mining program could have been obtained from telecom records or from databases of e-mails stored on servers.

Communications contents that aren’t “in motion” on a wire or radio wave might still be covered under FISA’s fourth catch-all definition of “electronic surveillance,” which essentially applies to any other use of a surveillance device to collect communications. But that definition only applies in circumstances where someone enjoys a “reasonable expectation of privacy” in the information—the Fourth Amendment standard that, according to precedent, doesn’t embrace non-content “metadata.” (Though that still leaves those pesky e-mail subject lines.)

That sounds very likely to me. Hopefully, the actual memo will appear at some time.

I still don’t buy the idea that the programme started only after 9/11, they’ve been doing this since forever.