Washington Post on the History of the NSA Programs

The Washington Post this morning has another big NSA story, this one historical in nature. I'm still digesting it, so for now, I'll just flag key aspects of it. Reporter Barton Gellman has obtained "a classified NSA history of STELLARWIND"---the series of four domestic collection programs that began during the Bush adminstration, one of which caused the huge internal crisis within the Bush administration that led to the famous hospital bed-side showdown. "Two of the four collection programs, one each for telephony and the Internet," Gellman writes, "process trillions of 'metadata' records for storage and analysis in systems called MAINWAY and MARINA, respectively. The other two types of collection, which operate on a much smaller scale, are aimed at content. One of them intercepts telephone calls and routes the spoken words to a system called ­NUCLEON." In some respects, the story adds texture to what we knew previously. With respect to telephony metadata, the telecommunications companies were participating in these programs voluntarily prior to their disclosure by the New York Times. They then sought protection by asking the government to force them to participate by seeking a court order. The result were the Section 215 orders for bulk production, one of which the Guardian recently disclosed. The issue that precipitated the hospital room crisis, however, involved email metadata, not telephony metadata. Writes Gellman:

The legal challenge for the NSA was that its practice of collecting high volumes of data from digital links did not seem to meet even the relatively low requirements of Bush’s authorization, which allowed collection of Internet metadata “for communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States,” the NSA inspector general’s report said. Lawyers for the agency came up with an interpretation that said the NSA did not “acquire” the communications, a term with formal meaning in surveillance law, until analysts ran searches against it. The NSA could “obtain” metadata in bulk, they argued, without meeting the required standards for acquisition. [Jack] Goldsmith and [Jim] Comey did not buy that argument, and a high-ranking U.S. intelligence official said the NSA does not rely on it today.

Three months after the crisis, Gellman reports, the FISA court "allowed the NSA to resume bulk collection under the court’s own authority. The opinion, which remains highly classified, was based on a provision of electronic surveillance law, known as 'pen register, trap and trace,' that was written to allow law enforcement officers to obtain the phone numbers of incoming and outgoing calls from a single telephone line." In other words, just as the FISA court ultimately permitted the telephony metadata collection pursuant to its own order under Section 215, it also ultimately permitted bulk email metadata collection---though apparently under a different provision of law. But the article concludes with the suggestion that this program is not still ongoing:

As for bulk collection of Internet metadata, the question that triggered the crisis of 2004, another official said the NSA is no longer doing it. When pressed on that question, he said he was speaking only of collections under authority of the surveillance court. “I’m not going to say we’re not collecting any Internet metadata,” he added. “We’re not using this program and these kinds of accesses to collect Internet metadata in bulk.”

All in all, this article is highly informative---and for exactly that reason, I suspect, highly damaging.