How A Telecom Helped The Government Spy On Me

from the telcos-enabling-surveillance dept

Over the past several months, the Obama Administration has defended the government's far-reaching data collection efforts, arguing that only criminals and terrorists need worry. The nation's leading internet and telecommunications companies have said they are committed to the sanctity of their customers' privacy.

I have some very personal reasons to doubt those assurances.

In 2004, my telephone records as well as those of another New York Times reporter and two reporters from the Washington Post, were obtained by federal agents assigned to investigate a leak of classified information. What happened next says a lot about what happens when the government's privacy protections collide with the day-to-day realities of global surveillance.

The story begins in 2003 when I wrote an article about the killing of two American teachers in West Papua, a remote region of Indonesia where Freeport-McMoRan operates one of the world's largest copper and gold mines. The Indonesian government and Freeport blamed the killings on a separatist group, the Free Papua Movement, which had been fighting a low-level guerrilla war for several decades.

I opened my article with this sentence: "Bush Administration officials have determined that Indonesian soldiers carried out a deadly ambush that killed two American teachers."

I also reported that two FBI agents had travelled to Indonesia to assist in the inquiry and quoted a "senior administration official" as saying there "was no question there was a military involvement.''

The story prompted a leak investigation. The FBI sought to obtain my phone records and those of Jane Perlez, the Times bureau chief in Indonesia and my wife. They also went after the records of the Washington Post reporters in Indonesia who had published the first reports about the Indonesian government's involvement in the killings.

As part of its investigation, the FBI asked for help from what is described in a subsequent government report as an "on-site communications service" provider. The report, by the Department of Justice's Inspector General, offers only the vaguest description of this key player, calling it "Company A.''

"We do not identify the specific companies because the identities of the specific providers who were under contract with the FBI for specific services are classified,'' the report explained.

Whoever they were, Company A had some impressive powers. Through some means – the report is silent on how – Company A obtained records of calls made on Indonesian cell phones and landlines by the Times and Post reporters. The records showed whom we called, when and for how long -- what has now become famous as "metadata."

Under DOJ rules, the FBI investigators were required to ask the Attorney General to approve a grand jury subpoena before requesting records of reporters' calls. But that's not what happened.

Instead, the bureau sent Company A what is known as an "exigent letter'' asking for the metadata.

A heavily redacted version of the DOJ report, released in 2010, noted that exigent letters are supposed to be used in extreme circumstances where there is no time to ask a judge to issue a subpoena. The report found nothing "exigent'' in an investigation of several three-year-old newspaper stories.

The need for an exigent letter suggests two things about Company A. First, that it was an American firm subject to American laws. Second, that it had come to possess my records through lawful means and needed legal justification to turn them over to the government.

The report disclosed that the agents' use of the exigent letter was choreographed by the company and the bureau. It said the FBI agent drafting the letter received "guidance" from "a Company A analyst.'' According to the report, lawyers for Company A and the bureau worked together to develop the approach.

Not surprisingly, "Company A" quickly responded to the letter it helped write. In fact, it was particularly generous, supplying the FBI with records covering a 22-month period, even though the bureau's investigation was limited to a seven-month period. Altogether, "Company A" gave the FBI metadata on 1,627 calls by me and the other reporters.

Only three calls were within the seven-month window of phone conversations investigators had decided to review.

It doesn't end there.

The DOJ report asserts that "the FBI made no investigative use of the reporters' telephone records." But I don't believe that is accurate.

In 2007, I heard rumblings that the leak investigation was focusing on a diplomat named Steve Mull, who was the deputy chief of mission in Indonesia at the time of the killings. I had known Mull when he was a political officer in Poland and I was posted there in the early 1990s. He is a person of great integrity and a dedicated public servant.

The DOJ asked to interview me. Of course, I would not agree to help law enforcement officials identify my anonymous sources. But I was troubled because I felt an honorable public servant had been forced to spend money on lawyers to fend off a charge that was untrue. After considerable internal debate, I decided to talk to the DOJ for the limited purpose of clearing Mull.

It was not a decision I could make unilaterally. The Times also had a stake in this. If I allowed myself to be interviewed, how could the Times say no the next time the government wanted to question a Times reporter about a leak?

The Times lawyer handling this was George Freeman, a journalist's lawyer, a man Times reporters liked having in their corner. George and the DOJ lawyers began to negotiate over my interview. Eventually, we agreed that I would speak on two conditions: one, that they could not ask me for the name of my source; and two, if they asked me if it was ‘X,' and I said no, they could not then start going through other names.

Freeman and I sat across a table from two DOJ lawyers. I'm a lawyer, and prided myself on being able to answer their questions with ease, never having to turn to Freeman for advice.

Until that is, one of the lawyers took a sheaf of papers that were just off to his right, and began asking me about phone calls I made to Mull. One call was for 19 minutes, the DOJ lawyer said, giving me the date and time. I asked for a break to consult with Freeman.

We came back, and answered questions about the phone calls. I said that I couldn't remember what these calls were about – it had been more than four years earlier – but that Mull had not given me any information about the killings. Per our agreement, the DOJ lawyers did not ask further questions about my sources, and the interview ended.

I didn't know how the DOJ had gotten my phone records, but assumed the Indonesian government had provided them. Then, about a year later, I received a letter from the FBI's general counsel, Valerie Caproni who wrote that my phone records had been taken from "certain databases" under the authority of an "exigent letter,'' (a term I had never heard).

Caproni sent similar letters to Perlez, to the Washington Post reporters, and to the executive editors of the Post and the Times, Leonard Downie and Bill Keller, respectively. In addition, FBI Director Robert Mueller called Downie and Keller, according to the report.

Caproni wrote that the records had not been seen by anyone other than the agent requesting them and that they had been expunged from all databases.

I'm uneasy because the DOJ report makes clear that the FBI is still concealing some aspect of this incident. After describing Caproni's letters, the report says: "However, the FBI did not disclose to the reporters or their editors that [BLACKED OUT]." The thick black lines obliterate what appear to be several sentences.

If you were to ask senior intelligence officials whether I should wonder about those deletions, they'd probably say no.

I'm not so sure.

The government learned extensive details about my personal and professional life. Most of those calls were about other stories I was writing. Some were undoubtedly to arrange my golf game with the Australian ambassador. Is he now under suspicion? The report says the data has been destroyed and that only two analysts ever looked at it.

But who is this 'Company A" that willingly cooperated with the government? Why was it working hand in glove with the FBI? And what did the FBI director not tell the editors of the Times and the Washington Post when he called them acknowledging the government had improperly obtained reporter's records?

Raymond Bonner, a lawyer and former New York Times reporter, is the author of "Anatomy of Injustice: A Murder Case Gone Wrong." This story was originally published on ProPublica and republished under its Creative Commons license.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    limbodog (profile), Oct 7th, 2013 @ 12:05pm

    Ok, serious question time.

    I'm hoping someone can answer this, because I truly do not know. How did we get this far without putting anything in our system to hold people in government responsible for violating the constitution? How is it that there is no penalty of any kind?

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Oct 7th, 2013 @ 12:22pm

    Re: Ok, serious question time.

    In theory, the elected officials would prosecute them and hold them accountable, and if they did not, the public would hold the elected officials accountable by voting them out of office. Freedom of speech, press, and assembly, being chief means to ensure people could speak up to call elected officials to account and get them voted out of office.

     

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  3.  
    identicon
    Anonymous Coward, Oct 7th, 2013 @ 12:25pm

    Re: Ok, serious question time.

    Did you vote for a Dem or a Rep recently? I AM DEAD SERIOUS TOO!

    Nancy Pelosi said, "We must first pass the bill to know what is in it." This is a line should no have ever been uttered in any hall of a government.

    Did you see any Rep/Dem try to censure/impeach/anything her for flagrant dereliction of duty?

    There are a FIZUCK TON of things in place to protect against this... but there are about 454 of them that do not give a FLYING SHIT about you or damn spec of their oath of office.

    You will never see them turn on each other like they because both parties are drunk upon the power the other has obtained for them.

    Go and read George Washington's farewell address, the LITERALLY predicted all of this, if we did not stop the party system bull!

     

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  4.  
    identicon
    Anonymous Coward, Oct 7th, 2013 @ 12:32pm

    Re: Re: Ok, serious question time.

    The only problem with the general theory is when information is kept under seal.

    Btw. When talking about personally identifiable data: There is a thin line between making it possible to single a person out and calling a person by name. As well as NSA should not snoop in "just metadata", it also means that NSA should hold some degree of possibility for redacting outside the specific personally identifiable data.

     

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  5.  
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    Anonymous Coward, Oct 7th, 2013 @ 12:37pm

    Re: Ok, serious question time.

    Its a manner of training, those who make it far enough to become FBI agents or NSA operatives have undergone years of schooling and training.

    They lose the perspective people on the outside have, they literally think differently than you or I.

    The same thing is apparent with any specialized field, for instance, people who have trained for years in computer programming tend to frame every issue from that perspective.

    There are relatively few people out there who are smart or experienced enough to take a step back and realize what a dangerous situation they have created.

     

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  6.  
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    Anonymous Coward, Oct 7th, 2013 @ 12:43pm

    Give a government comprehensive spying abilities and they turned it against their enemies, that is people who disagree with, embarrass or otherwise annoy them. Unlike looking for terrorists, this will produce results and make these services of value in the eyes of a government.

     

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  7.  
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    Anonymous Coward, Oct 7th, 2013 @ 12:46pm

    Re: Ok, serious question time.

    I have wondered this myself. If we violate even the most mundane of laws, we get fined and maybe even imprisoned. If governmental leaders violate the constitution, the very foundation of our country and every other law, then nothing happens. Just a court case declaring the law unconstitutional, if we are lucky, and nothing done to those who made and enforced that law.

     

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  8.  
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    Anonymous Coward, Oct 7th, 2013 @ 12:48pm

    Re: Ok, serious question time.

    If you ever had to deal with those people you would know how.
    They see something that could be a barrier and remove it, it can be in the form of new guidelines, new definitions, replacement of hostile staff for more compliant ones and buried in some other bill, where they say you have to take the whole or nothing and so things get passed eroding every so slightly the protections and safeguards put in place before.

    Take Obamacare for example, the problem is that the social security is pillaged by everyone in Washington, the money that was supposed to be put there in trust was used for everything except social security issues, so no wonder there is no money in there and there is no money coming in capable of reducing the draw that numerous bills had over the years, so the solution was to create a new tax to finance those things and to get it passed. Throw in a lot of carrots to hide that fact, what they didn't do was to create any safeguards either for that money that will be collected again and so probably will have the same faith as the social security one.

    The social security had a big amount of money when it started and it had some basic safeguards that were all removed over the years.

    That is how it happens it starts small, with very tiny almost imperceptible changes that nobody pays much attention, and with time it becomes something else.

    Not only in the US but everywhere, this is not something new, in fact is old, we have old sayings to describe those type of things "a 1000 mile journey starts with the first step" for example.

    That the government got free reign to do it for so long without nobody saying anything is a social failure. This time around was what 30 years without an incident? that is a long time the government is today very confident that they can do almost anything because they believe they are very good at hiding it from everyone.

    After the lobby scandal in DC congress created a separate ethic office that was to be responsible for investigating abuses by congress people, that office worked so well that it got defunded, they got scared and so didn't renew the funding, you see they didn't close it, nobody could say that, they just didn't fund it any longer and so that office although officially listed as existent no longer works. Congress people thought that being called to answer questions about integrity issues was to scary and detrimental to their images.

    Live past 40 and you will know that this all is true. This is not rocket science is good ol' cheating.

     

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  9.  
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    Anonymous Coward, Oct 7th, 2013 @ 12:48pm

    Don't put your name on the articles

    If you're a reporter of a story with sensitive sources, ghost write the story for a willing co-worker. That way it'll be a bit more difficult for them to figure out whose phone records to delve through.
    I know this goes against ego, resume building and pulitzer prize chances, but it seems a bit safer.

    (Or even better, create deals with other reporting companies to claim authorship for each other's sensitive stories.)

     

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  10.  
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    Anonymous Coward, Oct 7th, 2013 @ 12:59pm

    Re: Re: Ok, serious question time.

    Funny you talk about training, I remember a friend of mine that was being trained to be a diplomat, and he was complaining about how many times his boss made him type the same document(around 20 times) until it was what was expected to read, in the end they expect everybody to conform.

    Which also reminds me why no solution will come from inside the government at least not any good solution that is useful.

    We should be rewriting the laws of the land on Github and just choosing any schmuck willing to be a peoples socket puppet to pass those laws, we should not let it be written by congress and their "advisers" ever.

     

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  11.  
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    Anonymous Coward, Oct 7th, 2013 @ 1:01pm

    Thanks for sharing this; we need more stories of what is going on in this area.

     

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  12.  
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    Dave, Oct 7th, 2013 @ 1:02pm

    Washington's Farewell Address

     

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  13.  
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    Anonymous Coward, Oct 7th, 2013 @ 1:26pm

    Re: Washington's Farewell Address

    Thank you for posting this SIR!

    Every School in the Nation should be required to read the writing of our founding fathers as part of their history lessons.

     

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  14.  
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    akp (profile), Oct 7th, 2013 @ 1:31pm

    Re: Re: Ok, serious question time.

    That quote of hers is often used, and it's completely wrong.

    What she was saying is that many of the American People were opposed to healthcare reform, without them having read it.

    She was telling the populace that they would understand better after it had been passed and they saw the reforms in action. She was not saying that legislators hadn't read it!

    Source: http://www.washingtonpost.com/blogs/post-partisan/post/pelosi-defends-her-infamous-health-care-remar k/2012/06/20/gJQAqch6qV_blog.html

    Please stop spreading that misinformation.

     

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  15.  
    identicon
    Anonymous Coward, Oct 7th, 2013 @ 2:01pm

    Re: Re: Re: Ok, serious question time.

    No sir you don't get by with that.

    We are a Republic with some strong Democratic underpinnings. Never ever should such a thing be said by any government official, be it at the Citizens or Officials.

    If YOU are okay with a rep of ANY party saying this then you are a failure of a citizen.

     

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  16.  
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    Overcast (profile), Oct 7th, 2013 @ 3:34pm

    HA! Well no need to spy - with a government like this one - criminals would only be a 'step up'.

     

    reply to this | link to this | view in thread ]

  17.  
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    Bergman (profile), Oct 7th, 2013 @ 6:20pm

    Re: Ok, serious question time.

    There is a penalty.

    Title 18, Chapter 13, Sections 241 and 242 make it a federal crime to violate anyone's constitutional, civil or statutory rights under color of law. A lone individual non-violently violating rights could be sentenced to a year in federal prison if convicted. If even a threat (let alone use) of a dangerous weapon were involved or the violation was by two or more people, the penalty is ten years in prison. If anyone dies in the course of or as a result of the violation, the penalty if life without parole or execution.

    Of course, when the people who are violating rights are also the ones who decide whether to file charges, they're rather unlikely to charge themselves.

     

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  18.  
    identicon
    Anonymous Coward, Oct 7th, 2013 @ 6:42pm

    Lockbox

    Lockbox, say it a million times, it's what the President says happens to your data. It goes into a 'Lockbox'. Where everyone but you has the key and so called warrants are really just cover-your-ass-letters.

    And it's clear from his story they've been spying on Indonesian land lines courtesy of US suppliers to Indonesian telecoms. Do they think the US supplier won't hand over US data if forced to in Indonesia? Or China? or Russia? They'll do the same deal, "make it a secret, get a letter to make it legal and don't tell anyone, Putin".

    Why do we need a judicial branch at all if its so trivial to bypass?
    Why do we need laws if there's no judicial branch.

     

    reply to this | link to this | view in thread ]


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