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Thanks to whistleblower Edward Snowden, The Washington Post reports that the National Security Agency's mass surveillance operations include the content of telephone calls as well as the metadata.

The National Security Agency has built a surveillance system capable of recording “100 percent” of a foreign country’s telephone calls, enabling the agency to rewind and review conversations as long as a month after they take place, according to people with direct knowledge of the effort and documents supplied by former contractor Edward Snowden.
Since documents from Snowden revealed that the NSA is sweeping up en masse hundreds of millions of phone records, surveillance supporters have argued that because the information "is just metadata" it is not mass surveillance. (For anyone who hasn't been following, metadata generally means phone record of who called who and for how long, but not the voice data). The argument fails first because metadata is highly revealing, as countless technology and intelligence experts have articulated over the past nine months.

WAPO's report confirms that it's also factually incorrect to claim "it's just metadata:"

Ubiquitous voice surveillance, even overseas, pulls in a great deal of content from Americans who telephone, visit and work in the target country. It may also be seen as inconsistent with Obama’s Jan. 17 pledge “that the United States is not spying on ordinary people who don’t threaten our national security,” regardless of nationality, “and that we take their privacy concerns into account.”
Yet again, despite assurance from the President himself that NSA is not spying on innocent Americans, when given facts instead of government talking points, the public learns NSA is sweeping up innocent Americans' phone conversations on under the guise of protecting national security.

Present and former U.S. officials, speaking on the condition of anonymity to provide context for a classified program, acknowledged that large numbers of conversations involving Americans would be gathered from the country where RETRO operates.

The NSA does not attempt to filter out their calls, defining them as communications “acquired incidentally as a result of collection directed against appropriate foreign intelligence targets.”

The term "incidentally" is derived from the FISA Amendments Act (FAA) Section 702, which contains a loophole the size of a galaxy. You might remember the FAA from the provision giving the telecommunications companies immunity for cooperating with the warrantless wiretapping program, which we now know - thanks again to Edward Snowden - included the bulk metadata collection program before NSA decided to "bring it under the law" by reinterpreting the law. (Note to would be lawyers, don't try that sort of argument on the bar exam.) At the time the FAA was passed, the intelligence community and its apologists touted it as allowing surveillance of suspected terrorists, not entire populations, even going so far as to say:
There is nothing to fear in the bill [FAA], said Senator Christopher S. Bond, the Missouri Republican who was a lead negotiator, “unless you have Al Qaeda on your speed dial.”

Incidentally (pun intended), the Privacy and Civil Liberties Board, an independent federal agency that already found NSA violated the law with its bulk metadata collection program, is investigating NSA surveillance purportedly under FAA Section 702. The PCLOB is holding a hearing today that will be broadcast on C-SPAN Channel 2.

Let's not forget that this latest revelation is not the first time NSA has been caught with its hand in the content cookie jar. Snowden explained in a TED Talk yesterday that other previously-revealed programs, like PRISM, are not "just metadata."  

NSA whistleblower Bill Binney gave the public a similar warning in 2011:

Binney, for his part, believes that the agency now stores copies of all e-mails transmitted in America, in case the government wants to retrieve the details later. In the past few years, the N.S.A. has built enormous electronic-storage facilities in Texas and Utah. Binney says that an N.S.A. e-mail database can be searched with “dictionary selection,” in the manner of Google. After 9/11, he says, “General Hayden reassured everyone that the N.S.A. didn’t put out dragnets, and that was true. It had no need—it was getting every fish in the sea.”
The documents from Snowden prove Binney right and the "it's just metadata" crowd wrong. Now it is up to Congress and the courts to hold the Executive branch accountable.

Originally posted to Jesselyn Radack on Wed Mar 19, 2014 at 05:55 AM PDT.

Also republished by The First and The Fourth and Whistleblowers Round Table.

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