FOIA'ed Documents Show NSA Abuse Of Pen Register Statutes To Collect Content

from the subpoena-an-inch,-take-a-mile dept

New FISA court documents have been handed over to the EFF as the result of its long-running FOIA lawsuit. The new pile of documents is, unfortunately, very heavily-redacted, forcing readers to extrapolate a lot from the missing data.

One of the few released FISA court docs leaving anything legible concerns the NSA’s use of pen register/trap-and-trace orders to collect content, rather than just dialed phone numbers. The NSA (along with the FBI) has been admonished for its abuse of these orders before, thanks to its insistence any numbers dialed are fair game, even if they could be construed as partial contents of calls — i.e., communications.

What the NSA liked to scoop up were “post cut through dialing digits” — any numbers dialed after the phone number itself. These numbers could contain such things as credit card numbers, menu selections for automated services, and other information that could not be considered a dialed phone number.

The FISA court put an end to this, noting (all the way back in 2006) the government’s complaints it couldn’t segregate phone numbers from post cut through digits were laughable. It cites a magistrate judge’s denial of the government’s PR/TT order for these very reasons and asks the government to explain what actions it had taken in response to this denial.

On July 19, 2006, the Honorable Stephen WM Smith denied a government application to acquire post-cut-through digits in a criminal investigation, expressly rejecting the government’s argument that 18 U.S.C.3121(c) implicitly authorizes the acquisition of contents using a pen register/trap and trace device, given the current state of filtering technology In re Application of the United States for an Order Authorizing (1) Installation and Use of a Pen Register and Trap and Trace Device or Process. (2) Access to Customer Records, and Cell Phone Tracking, F.Supp.2d 2006 WL 2033877, at 6, 9 (SD. Texas, 2006).

Accordingly, the government is ordered to submit a written brief to the Court, no later than [redacted] discussing how, if at all, Magistrate Judge Smith’s opinion affects the government’s analysis of this issue as set forth in its Memorandum.

It also should be noted — as the EFF’s Aaron Mackey points out — the NSA spent nearly eight years collecting internet metadata with pen register/trap-and-trace orders before being forced to give up this bastardization of this zero oversight collection method, which was written specifically to target dialed phone numbers only.

Ultimately, the EFF is disappointed with this document dump and will likely challenge the NSA’s withholding of 12 requested documents in full. The NSA is supposed to deliver another set of documents from this lawsuit before the end of the year. But it’s falling behind on its other obligations. The USA Freedom Act mandated timely declassification of FISA court opinions, but the ODNI (Office of the Director of National Intelligence) appears to be moving forward with as little transparency as possible. Twelve documents withheld, eleven documents delivered composed mainly of blacked-out text. Hopefully, we’ll have more to work with when the NSA delivers its next batch sometime in the next couple of months.

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Comments on “FOIA'ed Documents Show NSA Abuse Of Pen Register Statutes To Collect Content”

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Anonymous Coward says:

From the perspective of the NSA or any other agency that does not want to fulfill a FOIA request, what practical incentive is there for them to comply, either with the request or with a later judge’s order? A judge doesn’t have the power to, say, prevent the agency from receiving tax dollars or otherwise hit them where it hurts in order to actually punish noncompliance or reward cooperation. On the flip side, actually revealing the requested information in a timely and useful (i.e. non-redacted) manner does carry the ability to smear or hurt the agency (with their own actions of course, but still). From a reward structure perspective, rampant foot-dragging and non-cooperation makes perfect sense, and government bureaucrats are nothing if not responsive to the actual (and not idealized) reward structure around them.

One’s not going to magically bring about better behavior by trotting out arguments about morality or that are otherwise disconnected from the practical matters of human decision making. The real question to me, with this FOIA issue as well as many other problems in our political system, is “How can one change this balance of competing factors to more favor ‘good’ behavior?” If we can’t answer that question, we can’t practically expect change (even if it is owed/deserved).

Anonymous Coward says:

"post-cut-through digits"

What are they going to do with those digits, write Grandpa-Simpson type stories for everyone in the country? "Ah, there’s an interesting story behind this nickel. In 1957, I remember it was, I got up in the morning and made myself a piece of toast. I set the toaster to three – medium brown."

Or maybe when you call your cable company there’s a secret code to speak with a terrorist? If so, tell me, because after a few minutes on an IVR system I’m willing to talk with any human I can get.

sophia41 says:


Tech and “security” contractors are out of control; when they are ALLOWED to be abusive and negligent to consumers, the COUNTRY’s “leadership” is out of control, ad this is NOT “Trump’s fault”!!!

Consumers are FED UP of technical abuses, hacking by sexual/financial predators and criminals, etc — We pay WAY TOO MUCH MONEY to techs and government, where NEITHER are protecting this country’s most vulnerable citizens.

I really don’t care about terrorists —criminals and corruption are FAR MORE rampant than the terrorist element–

I was terrorized by a VIOLENT fire chief PERVERT who has been ALLOWED to harass and stalk victims, at WHIM, with the help of his IT security specialist “friends.” THESE GUYS ARE CRIMINALS AND THEY ARE NOT BEING STOPPED –the STATE OF CA IS PROTECTING CRIMINAL ELEMENTS IN GOVERNMENT when they allow these PREDATORS TO HARASS CITIZENS — the FBI is doing NOTHING about email harassment/threats/crimes either, especially where INTERSTATE CRIMES against unsuspecting victims are RAMPANT!!!

RELEASING VIOLENT FELONS ON SOCIETY was another US GOVERNMENT FAILURE to contain criminal and corruption elements, and they STILL haven’t STOPPED TERRORISM, CORRUPTION, and CRIMES against the innocent!!!

I’ve read the complaints about SPECTRUM CABLE forcing Christine Mailloux, staff attorney with the Utility Reform Network, a San Francisco advocacy group to PAY FOR HACKERS CALLS TO CUBA– over $6,000—this country’s SECURITY FAILURES AND CORRUPTION/elevated access by criminal hackers and perverts has NO OVERSIGHT and CITIZENS ARE PAYING A HIGH PRICE for these OVERPAID, GREEDY SNOBS!!

This is SERIOUSLY affecting consumer faith in ANY industry, especially where there are SO MANY PROBLEMS with phone, interne, etc and “Security software companies are defrauding customers by having relatively NO OVERSIGHT of those eavesdroppers on PRIVATE CONVERSATIONS, yet THEY ARE ALLOWING STALKER FIRE CHIEF to VIOLATE FCC and other STALKING and surveillance laws!

It’s time to cut the cord with ROGUE and CORRUPT security contractors and business that INTENTIONALLY HARM CITIZENS!


I have NO EMAIL now as a DIRECT result of no protections for consumers, and also Yahoo has blocked accounts against political rivals, even accounts that have been registered for OVER 20 YEARS!! SHAME on what the irresponsible and criminal elements are doing to tech industry these days, and SHAME ON THE GOVERNMENT FOR PERPETUATING VIOLENCE against innocent victims, and REFUSING to stop revenge porn from unwitting victims who have NEVER GIVEN PERMISSION TO ANYONE to be filmed/photographed in the nude, and they are being ALLOWED TO STALK AND THREATEN VICTIMS WHILE ARMED!!

This country is going downhill fast with this SERIOUS LACK OF OVERSIGHT of criminals and perverts in tech!

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