Jun 6, 2015 by




Surveillance reform explainer: can the FBI still listen to my phone calls?

Lone wolves, roving wiretaps, business records – all these technical terms cloud the real question on everyone’s minds: is the phone chatter of ordinary Americans now immune from government surveillance?
Senator Rand Paul holds up his cellphone at a press conference about government surveillance.
Excuse us, Senator Paul, but we have bad news: that cellphone is still open to surveillance. Photograph: Ross D. Franklin/AP

Something surprising happened in Washington DC on Tuesday: Congress passed surveillance reform. Last weekend, three parts of the Patriot Act – a bill disapproved of in its current form by many Americans across party lines – expired, ending authority for several forms of surveillance of US citizens introduced by the Bush administration, backed by Barack Obama, and altered in secret by the National Security Agency (something Edward Snowden later exposed).

The Senate on Tuesday passed the USA Freedom Act, which restores expired powers of the FBI, notably the “business records”, “lone wolf” and “roving wiretap” provisions, but puts an end to the NSA’s indiscriminate collection of American phone records. The fight was hard-won: Senate GOP leader Mitch McConnell advanced three different amendments that would have defanged the reforms in various ways. All three failed.
Congress passes NSA surveillance reform in vindication for Snowden
Read more
So that’s it – the FBI can’t listen to my phone calls anymore, right?

Wrong. The FBI will do whatever it wants with your phone calls, provided it has a warrant. Section 215 of the Patriot Act, used by the FBI “to obtain large collections of metadata”, had indeed expired, but the USA Freedom Act restored it. (The Freedom Act, as mentioned, will stop the NSA from collecting Americans’ phone records in bulk. More on that in a second.)

The main statute the FBI uses to listen in directly on phone calls is called Calea – the 1994 Communications Assistance for Law Enforcement Act. Calea was designed to make it easier for the FBI to listen in on calls as telecoms technology shifted from copper wires to digital. Essentially, giving the FBI a backdoor key to your network is a condition of running a phone or internet company. Where phone records are concerned, the FBI has a history of circumventing the requirement for a warrant, notoriously in the years after 9/11 with “exigent letters” seeking billing records, which claimed – often falsely – that the situation was an emergency and a grand jury was about to be convened.

And there are National Security Letters, which allow the FBI to collect “business records” (and that includes credit card statements and phone information) without having to get permission from a judge.

National Security Letters are sticking around, though they can’t be used to collect phone records in bulk anymore. But the Freedom Act specifically states that you won’t be able to tell anybody you received a National Security Letter. If this provision sounds to you like it does not belong in something called the Freedom Act, you have a point.
USA Freedom Act – graphicNSAgraphic-3-0-0
Speak English. What are ‘lone-wolf’ capabilities?

Sorry. First up, we’re talking about the 2004 “lone wolf” amendment to the 1978 Foreign Intelligence Surveillance Act (Fisa).

See, Fisa created a secret court that issues warrants for surveillance to the FBI (and helped the NSA retroactively shoehorn metadata collection into the Patriot Act in 2006). This allows for the possibility that there’s one guy out there who might blow something up. Rather than an agent of a foreign power, or a person with connections to terrorism, the definition of lone wolf is nebulous – to say the least. The amendment changes the definition of “agent of a foreign power” to include people who might be planning to engage in “international terrorism” in the judgment of the court.

“If an order is sought under this definition of an ‘agent of a foreign power’,” the amendment says, “the applicant is not required to demonstrate a connection between the target of the electronic surveillance or the physical search and a foreign nation, foreign group, or international terrorist group.” The FBI says it has never even used this provision.
And ‘roving wiretaps’?

“Roving wiretaps” are supposed to allow the government to track suspects who change phones, but their definition is very broad too – so broad a court can issue them without having to know the identity of the target. The FBI has used this provision, notably to spy on children for five days.
Go back. Secret court?

Yes. Fisa created a secret court that issues orders related to the surveillance of “foreign intelligence information” between people who are “agents of foreign powers”, including US citizens.
Which Americans?

Definitely everybody on Verizon, who had their data swept up by the NSA, as first revealed by Snowden, for example. Also US customers of other phone companies.
Will the USA Freedom Act get rid of that secret court?

So what does the Freedom Act even do then?

At this point in the debate, its biggest change is to make a big trade: it junks the NSA’s bulk collection of US phone data in exchange for restoring the now-expired, aforementioned FBI powers in the Patriot Act. (The reason you might be confused about that is weeks’ worth of imprecise reporting, as the media has – understandably – had trouble making heads or tails of this). Various writers and talking heads have used “Section 215” or the “Business Records Provision” to mean “NSA bulk collection” because the NSA secretly jammed its domestic bulk collection into Section 215 back in 2006. But they’re totally not the same thing.

To ensure that the NSA or the FBI doesn’t try to reconstitute bulk collection, or some domestic surveillance operation similarly massive, the act also creates a kind of “early warning” system at the secret Fisa court. “Significant” Fisa court opinions, ones that would substantially reinterpret the laws (again, in secret), would have to be publicly disclosed within 45 days. Also, since the Fisa court right now only hears from the government – another way the Fisa court is unlike every court you’ve ever heard of in this country – it would also create a kind of privacy advocate, called an “amicus”, for those kinds of novel cases so that it’s not overseeing itself.

Those are the transparency provisions McConnell and Senate intelligence committee chief Richard Burr wanted to scuttle.
Wait, so how can I be sure nobody’s listening who isn’t supposed to be listening?

The short answer is that you can’t, but the long answer is more interesting. Fear of government surveillance and malicious hackers have meant a boom in apps and proxies that purport to offer secure alternatives to plain old telephone service connections, mostly using VPNs – virtual private networks. Sure, your data goes through open phone lines, cell towers and fiber cables, but it can be encrypted in a number of ways, some more effective than others. Some of these privacy tools keep a log of your username, IP address and when you use the network (which can then be turned over to law enforcement if subpoenaed); others use “dark tunnels” and do not keep logs – there are proxies that even accept bitcoin so that financial records are harder to trace.
So this isn’t big news?

No, it’s HUGE news. The steps forward represented by the USA Freedom Act may seem small to people outraged by government overreach, but it’s frankly astonishing that they’re going forward at all. For the past 15 years Congress’s favorite thing to do has been to expand NSA powers. Now it’s restricting them for the first time since 1978. The issue of broad government surveillance has become such a powerful motivator to action that the passage of the Freedom Act is likely to have all kinds of ramifications, from the NSA having to justify its actions more frequently to a more knowledgeable public, to Rand Paul being taken more seriously as a presidential candidate. It’s also an issue others seeking the US’s highest office will have to develop a public-friendly stance on, and quickly.

Additional reporting by Spencer Ackerman in New York


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