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Traffic Analysis - Part II

When last we left the plucky National Security Agency, it was embroiled in an uproar about the (legal? illegal?) collection of telephone call records.  To our amazement, we found that the extent of this data gathering would almost fill a cheap hard drive every day.  We expected that they would use this valuable data to track communication patterns among... pretty much everyone.  Expounding on the value of this traffic analysis as I did in Part One also reminds us of its limits.  If there is a suspicion of malicious intent, what can the NSA do? 

Permit me to digress for a moment.  There was an interesting piece in Aviation Week some time ago that discussed aerial reconnaissance in Iraq.  It seems that our surveillance aircraft were taking videos of Iraq at night.  Of course there was a lot going on, most of it innocent, or at least innocent in the sense that it wasn't warlike mischief.  But some people were up to just that, and their movements were recorded along with those of the innocents.  If an improvised explosive device detonated the next day, the tapes could be reviewed and, working backwards from the explosion, the people who planted it could be tracked.  Undoubtedly there were a lot of surprised insurgents until they caught on to how they were tracked down.

If the NSA is doing all this traffic analysis with our telephone calls, how can they determine whether something is mundane or minatory?  Can they only have suspicions yet not act on them to prevent an IED-equivalent being detonated in the USA?  One thing they could do prove their suspicions correct or not is to simply record all the telephone calls associated with the call records, i.e., every telephone call made in the country, and then go back and listen to them when their suspicions are aroused by the traffic analysis.

WHAT!!!!????  Did you just write that they could record every call made in the country?

I guess I did at that!  And who better to do it?  We give them billions of dollars a year; I would hope they could figure out how!  Another little math exercise, another set of made-up but perfectly reasonable numbers:

250 million callers, 10 calls per day, 10 minutes per call, 1kByte per second digitizing rate.  That comes to 1,500 terabytes per day of data.  Can't fit that on a cheap hard drive, can you?  But can the NSA fit it in the most sophisticated processing equipment on earth?  Holographic storage, perhaps?  Big tape libraries?  Again, I sure hope so, or we're wasting our tax money.  And, I think I may be exaggerating a little.  It's unlikely that they record every call since there are many calls that originate and terminate in the same local office and really aren't transported over a network or are susceptible to "bugging" en masse.  So pick your own number:  1,000TB per day?  500?  200?  Whatever I'd be dismayed if the NSA weren't up to it.

Now we have the makings of a proper scandal!  Your call to the proverbial Aunt Tillie is on "tape" at Fort Meade.  Not to mention your call to your bookie, your mistress, your accomplice...  Ready to spend the rest of your life writing in Europe?

We're all guilty of something.  With this treasure trove of illegally-obtained evidence, our government, no slouches in the guilty department itself, might as well just put guard towers on that anti-immigrant wall and declare that we're all in jail.  How can we swim in the ocean now without getting shot?  Simple:  Recording everybody is almost the equivalent of recording nobody.  With 25 billion minutes of calls to listen to every day, weekends included, it would require a staff of approximately 60 million people to listen to the recordings, and they would only survive for a few weeks before dying of boredom.  In other words, they're in effect using what is jokingly referred to as "write-only memory" for making these recordings. 

What, then is the point?  The point is that the NSA has the call records, the recordings, and they are continuously analyzing the call traffic, domestic and foreign as well, the second of which is their avowed (and unclassified) mission.  If there is a sudden increase in "chatter" or a suspicious pattern in the call record data, they can go back days, weeks, maybe even years to listen to the calls made by all the parties.  It's hard to imagine a more powerful weapon against terrorism!

And it's hard to imagine what could create a bigger civil liberties uproar!  Recording billions of calls of innocent citizens illegally.  I can hear the ACLU storming the gates of the Supreme Court right now.  Never mind putting the citizens in jail; how about the whole executive branch?  Can you believe those bastards at the NSA and the CIA are testifying in open session that everything they're doing is legal?  String 'em up.  Is it worth losing our liberty, our privacy, our pastries*, in the pursuit of terrorism? 

But before we string 'em up, let's just do a few seconds of doubt benefiting.  Is it remotely possible that recording all our calls is legal?  When we've heard all our lives that a court order is needed for a wiretap?  We're hearing now that there is a special court that can secretly authorize wiretaps for security purposes, and thus there is a legitimate judicial process.  Is the NSA bypassing it?

Perhaps not...

As a ham radio operator for most of my life, I've grown up with "The Communications Act of 1934" embedded in my alleged brain.  One of the provisions had to do with "intercepting" communications.  Before encryption and digital transmission, a lot of confidential information was transmitted in the clear, and there was nothing that the FCC could do to prevent one from listening to it.  However, the Act very specifically provided that the information could not be "disclosed" to a third party.  Without doing research or consulting a communications attorney, I don't know how much of this principle has survived to the present, but the theory behind it one cannot use or benefit from intercepted information almost certainly continues to apply. 

A "wiretap," whether of a specific individual or on the massive scale suggested here, implies more than just recording.  It implies that the information will be listened to and used.  Otherwise, why bother?  I've already discussed the "why bother."  But, and this is the key question:

If a wiretap or recording made without a court order is never listened to, is it still illegal?  If the NSA never listens to a recording without a court order, was that recording illegally made?  Are "interception" and "disclosure" legally separable in this instance?  How many angels can dance on the head of a pin?  I can't answer these questions, but of all the speculation, extrapolations, assumptions, theories, and babble in this blogitem, I can guarantee one is correct:  You can find well-meaning, smart, and sincere lawyers to argue both sides of this question.  Absent a very specific act of congress or fiat from the Supreme Court, the NSA will be able to obtain the advice of counsel that the recording program is legal as long as a court has to authorize actually using any of the recordings.

In other words, all our telephone calls can be recorded, and the government can legitimately say "we're not breaking the law" as long as nobody listens to those calls without getting a court's permission.  And, of course, getting permission simply requires a showing to be made that the calls probably contain foreign security information.

Enough for today.  Tomorrow, let's try for a conclusion...


*In fact, our pastries are only near the middle of the list of things the government is likely to take away.  I put that in because it makes the sentence flow, it makes you feel that you're paying attention, and I'm actually working on a blogitem about pastries as I write this.  And if they do try to take my pastries, they'll find out what an enraged citizenry is all about.

2006
Richard Factor