The cat’s on the roof

Remember that old joke about “the cat’s on the roof”, and how I last used it about Fukushima to illustrate how they would release misleading info in increments before they’d finally tell us the truth?

Well, last week, we were “only” collecting metadata on phone calls. Now we find out that in a classified briefing, members of Congress were told NSA analysts can listen to domestic phone calls without a warrant. Yep, I’d say the cat’s up on the NSA roof:

The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.

Rep. Jerrold Nadler, a New York Democrat, disclosed this week that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed “simply based on an analyst deciding that.”

If the NSA wants “to listen to the phone,” an analyst’s decision is sufficient, without any other legal authorization required, Nadler said he learned. “I was rather startled,” said Nadler, an attorney who serves on the House Judiciary committee.

[pull]Nadler’s disclosure indicates the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.[/pull]

Not only does this disclosure shed more light on how the NSA’s formidable eavesdropping apparatus works domestically, it suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.

Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, Nadler’s disclosure indicates the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.

The disclosure appears to confirm some of the allegations made by Edward Snowden, a former NSA infrastructure analyst who leaked classified documents to the Guardian. Snowden said in a video interview that, while not all NSA analysts had this ability, he could from Hawaii “wiretap anyone from you or your accountant to a federal judge to even the president.”

There are serious “constitutional problems” with this approach, says Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation who has litigated warrantless wiretapping cases. “It epitomizes the problem of secret laws.”

The NSA yesterday declined to comment to CNET. A representative said Nadler was not immediately available. (This is unrelated to last week’s disclosure that the NSA is currently collecting records of the metadata of all domestic Verizon calls, but not the actual contents of the conversations.)

There’s an awful lot of pushback floating around the intertubes, trying to discredit this story. A C-SPAN video has gone viral in which Nadler asks FBI Director Robert Mueller during last week’s public hearing whether the actual content of a phone call can be accessed without a warrant; Mueller says no. Nadler says that isn’t what he was told in the classified briefing.

Well, this CNET story is about what Nadler, who’s also an attorney, was told in a separate briefing; I’m going to assume he knows the difference. YMMV.

(I talked to Marcy Wheeler, who told me it’s all in the unique definitions of words under the law. More to follow.)