Can NSA Analysts Listen to Your Phone Calls?

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Declan McCullagh at CNET draws our attention today to testimony from FBI director Robert Mueller at a House Judiciary hearing on Thursday:

Mueller initially sought to downplay concerns about NSA surveillance by claiming that, to listen to a phone call, the government would need to seek “a special, a particularized order from the FISA court directed at that particular phone of that particular individual.”

Is information about that procedure “classified in any way?” Nadler asked.

“I don’t think so,” Mueller replied. “Then I can say the following,” Nadler said. “We heard precisely the opposite at the briefing the other day. We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that…In other words, what you just said is incorrect. So there’s a conflict.”

Nadler was unavailable for comment, and this is apparently the sum total of the information we have. It’s not clear precisely what “information from that telephone” means, or whether this applies to all calls or only to non-U.S. calls. It’s also possible that Nadler was confusing the ability of an analyst to get subscriber information for a phone number with the ability to listen to the call itself. Another possibility is that this applies only to phone content that’s already been acquired by warrant and is currently in NSA’s database. Or perhaps it applies to real-time wiretapping, but only if an analyst concludes that the target is a non-U.S. person already covered by a “programmatic” (i.e., broad-based) Section 702 warrant.

Alternatively, it could be that NSA analysts have the ability to listen in on phone calls on their own say so. We won’t know for sure until Nadler or someone else clears this up. Stay tuned.

NOTE: For more, check out Julian Sanchez’s Twitter feed, which provided much of the background for this post.

UPDATE: Sanchez now has a more detailed blog post about all this. It’s worth a read.

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