The public has received a barrage of information about the data collection activities of the NSA since The Guardian first started to publish material that they received from Edward Snowden. The material deals with matters that are complex both in terms of the technology and the legal issues involved. Given the fact that the government attempts to cloak all of the NSA's operations in state secrecy it becomes very difficult to get a baring on what is actually happening and to evaluate the accuracy of the material provided by Snowden.
One source of the confusion is the difference between traditional telephone voice communications and internet data communications. There was a point when these two functions worked differently and were distinctly separated from each other. The line between them is becoming less and less distinct and the day when there will be a full convergence of the two historical systems is not far away. One important issue for understanding the debates about NSA is that the notion of meta data has very different implications for a traditional telephone network than it does for the internet.
Back in the days when J. Edgar Hoover and his agents were running a massive illegal wiretap program on the telephones of American citizens, they were dealing with a mechanical network. Conducting surveillance of telephone conversations required a physical connection to a physical phone line. Ma Bell kept records of customers phone calls for billing purposes but those were completely separate and distinct from the conversations conducted on those calls. This was what was known as a public switched telephone network PSTN. When J. Edgar ended his days computers and the internet were still something used only by technically specialized people.
We now have a world in which there are a lot more ways to communicate with other people. There is still a network of landline telephones which are connected to a PSTN by a pair of wires. However, once those wires reach a switching center then everything becomes a digital operation that provides immediate linkage to phones all over the world. There is still a distinct separation between the business records of calls made, meta data, and the actual calls themselves. However, those calls can be intercepted without someone having to climb a telephone pole. The voice communication is converted from analog to digital data and then back to analog on the other end. In is digital form it can be intercepted by a computer that has access to the network.
The internet works differently than the PSTN. It runs on the TCP/IP protocols. Any device connected to it is given a unique IP address that is different from the addresses of all other devices. Communications are routed according to these IP addresses. One piece of technology that contributes to the speed of internet communication is packet switching. When you write an email that contains 500 words it does not travel as a single piece like an old fashion letter. It is broken up into multiple packets of small pieces of data that are routed along the fastest available path on the network. The meta data that is contained in each packet is used to reassemble the email in its original form and to route it to the destination IP address. The meta data and the content are all jumbled up together. Internet meta data makes content directly accessible.
The original FISA Act passed in 1979 was written to control the excesses of J. Edgar among other things, and it was done in the context of the technology available at the time. The authors were not dealing with electronic packets flying around the internet. A pen register is a term that goes back to the days of the telegraph. The term has been given legal definitions in various statutes. The latest of these was the Patriot Act. The fundamental notion is a device that records information about calls made from a phone without recording the calls themselves. In Smith vs Maryland SCOTUS ruled that a pen register did not constitute a search under the terms of the 4th amendment. The Patriot Act expanded the definition of pen register to include tracking of internet communications.
During the Bush administration there was a big face off between the White House and the DOJ over the attempt to use the vague language of the Patriot Act and justification for intercepting internet communications without a warrant. I explored that is this diary. That led me to further explorations on the subject.
The first of the documents provided by Snowden was an order to Verizon to provide NSA with phone records for a specified period. Most of the responses that have come from NSA have focused on the legal justification for the warrantless collection of this type of bulk data. This was the focus of their testimony today before the Senate Judiciary Committee. The impression I get is that they are not admitting to warrantless collection of internet data. However, The Guardian has published documentation of two programs which strongly that they are doing so on a large scale. The first of the was the PRISM program. Today Gleen Greenwald has published new documents on XKeyscore.
Anybody who is not very confused by all of this probably hasn't really been paying attention. When you look at what is happening with telephone communications it gets even murkier. More and more people are ditching their landline phones for cell phones and with smartphones they are able to do most of what the do on the internet. The technology involved is changing rapidly. Depending on how you use a smartphone to make a voice call you are going through different types of networks. You might be routed through the PSTN of your telco provider, but if you use Skytype of Facebook you are doing voice over the internet and your communications are being transmitted like your emails.
This diary does not provide smoking pistols about the NSA. It is an attempt to show how complex the issues are and to try to drill down into just one facet of it.