If you thought that the National Security Agency's warrantless wiretapping was limited to AT&T, Verizon and Sprint, think again.
While these household names of the telecom industry almost certainly helped the government to illegally snoop on their customers, statements by a number of legal experts suggest that collaboration with the NSA may run far deeper into the wireless phone industry. With over 3,000 wireless companies operating in the United States, the majority of industry-aided snooping likely occurs under the radar, with the dirty-work being handled by companies that most consumers have never heard of.
A recent article in the London Review of Books revealed that a number of private companies now sell off-the-shelf data-mining solutions to government spies interested in analyzing mobile-phone calling records and real-time location information. These companies include ThorpeGlen, VASTech, Kommlabs, and Aqsacom--all of which sell "passive probing" data-mining services to governments around the world.
ThorpeGlen, a U.K.-based firm, offers intelligence analysts a graphical interface to the company's mobile-phone location and call-record data-mining software. Want to determine a suspect's "community of interest"? Easy. Want to learn if a single person is swapping SIM cards or throwing away phones (yet still hanging out in the same physical location)? No problem.
In a Web demo (PDF) (mirrored here) to potential customers back in May, ThorpeGlen's vice president of global sales showed off the company's tools by mining a dataset of a single week's worth of call data from 50 million users in Indonesia, which it has crunched in order to try and discover small anti-social groups that only call each other.
Clearly, this is creepy, yet highly lucrative, stuff. The fact that human-rights abusing governments in the Middle East and Asia have deployed these technologies is not particularly surprising. However, what about our own human-rights-abusing government here in the U.S.? Could it be using the same data-mining tools?
To get a few answers, I turned to Albert Gidari, a lawyer and partner at Perkins Coie in Seattle who frequently represents the wireless industry in issues related to location information and data privacy.
When asked if there is a market for these kinds of surveillance data-mining tools in the U.S., Gidari told me: "Of course. It is a global market and these companies have partners in the U.S. or competitors."
The question is not if the government would like to use these tools--after all, what spy wouldn't want to have point-and-click real-time access to the location information on millions of Americans? The real mystery is how the heck the National Security Agency can legally get access to such large datasets of real-time location information and calling records. The answer to that, Gidari said, is the thousands of other, lesser-known companies in the wireless phone and communications industry.
The massive collection of customer data comes down to the interplay of two specific issues: First, thousands of companies play small, niche support roles in the wireless phone industry, and as such these firms learn quite a bit about the calling habits of millions of U.S. citizens. Second, the laws relating to information sharing and wiretapping specifically regulate companies that provide services to the general public (such as AT&T and Verizon), but they do not cover the firms that provide services to the major carriers or connect communications companies to one other.
Thus, while it may be impossible for the NSA to legally obtain large-scale, real-time customer location information from Verizon, the spooks at Fort Meade can simply go to the company that owns and operates the wireless towers that Verizon uses for its network and get accurate information on anyone using those towers--or go to other entities connecting the wireless network to the landline network. The wiretapping laws, at least in this situation, simply don't apply.
Giardi explained it as follows:
Networks are more and more disaggregated and outsourced, from customer service call centers overseas with full viewing access to data to key infrastructure components and processing. A single communication is handled by many more parties than the named provider today. Moreover, interoperability protocols include network identifiers--send a message from company A to company B and the acknowledgment of delivery may include location and other information. That's just the way the system is designed--location was about billing in the early years and no one bothered to undo the existing protocols when business models changed and interoperability became common practice or a myriad of new messaging companies came into being...So my point is that there are many access points--albeit less convenient than one-stop shopping at the big carriers--to get information including real-time data.
For example, if a Sprint Wireless customer in Virginia calls a relative in Montana--who is a customer of a small, regional landline carrier--information on the callers will spread far beyond just those two communications companies.
Sprint doesn't own any of its own cellular towers, and so TowerCo, the company that owns and operates the towers, of course, learns some information on every mobile phone that communicates with one of its towers. This is just the tip of the iceberg, though. There are companies that provide "backhaul" connections between towers and the carriers, providers of sophisticated billing services, outsourced customer-service centers, as well as Interexchange Carriers, which help to route calls from one phone company to another. All of these companies play a role in the wireless industry, have access to significant amounts of sensitive customer information, which of course, can be obtained (politely, or with a court order) by the government.
With the passage of laws like the FISA Amendments Act and the USA Patriot Act, in most cases, requests for customer information come with a gag order, forbidding the companies from notifying the public, or the end users whose calling information is being snooped upon. Gidari summed it up this way:
So any entity--from tower provider, to a third-party spam filter, to WAP gateway operator to billing to call center customer service--can get legal process and be compelled to assist in silence. They likely don't volunteer because of reputation and contractual obligations, but they won't resist either.
Before getting into the details of the issue, Ohm first outlined the basic problem of the various wiretap and surveillance laws; they are extremely confusing and few people fully understand them. The 9th Circuit Court of Appeals seemed to share Ohm's view, stating a few years ago that the Electronic Communications Privacy Act is a "complex, often convoluted area of the law" (United States v. Smith, 155 F.3d 1051).
Ohm then said that the "one thing I can say with confidence is that you are correct to note that the [Stored Communication Act's] voluntary disclosure prohibitions (in 18 USC 2702(a)) apply only to providers to the public."
After describing all the ways that the government could legally collect real-time data on millions of U.S. citizens, Gidari said that essentially, the existence of such a program would likely remain a secret (barring a whistle-blower or leaks to the press by government officials). Summing it up, he stated that:
Whether [a] vendor to a carrier to the public cooperates with agencies (either for a fee or by acquiescence in an order), is something you will not find out as FISA makes it so, regardless of whether the person is in the U.S. or communicating with a person abroad. Such means and methods largely are hidden.
However, if the existence of such a program were ever confirmed, Ohm said that Congress would not be too happy:
If [the sharing of data by niche telecom providers] is seen as allowing an end-around an otherwise clear prohibition in the SCA, Congress is likely to throw a fit when it is revealed and try to amend the law. DOJ is sensitive to this kind of thing (despite what the NSA wiretapping program would lead you to believe) and would probably try to avoid blatantly bypassing otherwise clear language in this way.