ProPublica Recounts A Case Where Telecom Aided Government Spies

This article, written by Raymond Bonner, was originally published by ProPublica on Oct.3.

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 2013 the report is silent on how 2013 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 investigationwas 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 2018X,’ 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 2013 it had been more than four years earlier 2013 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 willing 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.”

Where Did Syria’s Chemical Weapons Come From?

ProPublica looks beyond the rhetoric of current and past Western governmental administrations to trace the genealogy of Syria’s current chem “stockpile.” You aren’t likely to be surprised at the shape of the chemical warfare family tree.

by Jannis Brühl
ProPublica,  Sep. 25, 2013, 12:41 p.m.

In the wake of a recent Russian-U.S. deal averting American airstrikes, Syria has begun to answer questions about its chemical weapons stockpile. One thing inspectors don’t have the mandate to ask is where those weapons came from in the first place. But evidence already out there suggests Syria got crucial help from Moscow and Western European companies.

When Secretary of Defense Chuck Hagel was asked recently about the origins of Syria’s chemical weapons, he said, “Well, the Russians supply them.“ Hagel’s spokesman George Little quickly walked back that statement, saying Hagel was simply referring to Syria’s conventional weapons. Syria’s chemical weapons program, Little explained, is “largely indigenous.”

But declassified intelligence documents suggest Hagel, while mistakenly suggesting the support was ongoing, was at least pointing his finger in the right direction.

A Special National Intelligence Estimate dated Sept. 15, 1983, lists Syria as a “major recipient of Soviet CW [Chemical Weapons] assistance.” Both “Czechoslovakia and the Soviet Union provided the chemical agents, delivery systems, and training that flowed to Syria.” “As long as this support is forthcoming,” the 1983 document continues,” there is no need for Syria to develop an indigenous capability to produce CW agents or materiel, and none has been identified.”

Soviet support was also mentioned, though with less details, in another intelligence estimate dated Feb. 2, 1982. That report muses about the U.S.S.R.’s motivation for exporting chemical weapons to Syria and other countries. The Kremlin saw gas as useful for allies fighting against insurgencies: For the countries that had actually used it in combat – Kampuchea, Laos, Afghanistan and Yemen – the authors conclude that the Soviet Union saw it as a way of “breaking the will and resistance of stubborn guerrilla forces operating from relatively inaccessible protected sanctuaries.”

The 1982 report goes on to say: “The Soviets probably reasoned that attainment of these objectives – as quickly and cheap as possible – justified use of chemical weapons and outweighed a small risk of exposure and international condemnation.” Last week, German newspaper Süddeutsche Zeitung reported that intelligence sources in the country are convinced blueprints for four of the five Syrian poison gas plants came from Moscow.

Evidence gathered from what we now know was a sarin attack last month is also suggestive. According to an investigation by Human Rights Watch, one of the weapons used in the attack was “a Soviet-produced 140mm rocket.” Meanwhile, the UN’s own report shows a picture of Cyrillic letters on the remnants of the rocket.

It’s impossible to know the exact extent of Soviet and Russian help. U.S. intelligence was not particularly focused on the Syrian program, says Gary Crocker, a proliferation specialist at the State Department’s Bureau of Intelligence and Research in the 1970s and 1980s. Most analysts did not know much about its program: “Detailed information on the Syrian program was only accessible to very high level intelligence officials,” Crocker said.

There are also indications that the Soviets grew increasingly uneasy with Syria’s ability to deliver the deadly gas by long-range missile. Concerned about Syria’s buildup, the head of the Soviet chemical warfare corps, General Vladimir Pikalov,flew to Syria in 1988. According to reports from the time, he decided against supplying the country with SS-23 missiles, which would have been able to deliver poison gas deep into Israel.

But the Soviets don’t appear to be the only ones who provided some help.

“Soviets provided the initial setup, then the Syrians became quite proficient at it. Later, German companies came in,” Crocker said.

As then- CIA director William Webster said in Senate testimony back in 1989: “West European firms were instrumental in supplying the required precursor chemicals and equipment.” Asked why the companies did it, Webster answered: “Some, of course, are unwitting of the ultimate destination of the products they supply, others are not. In the latter case, I can only surmise that greed is the explanation.”

Indeed, Syria received precursor chemicals from the West until well into the last decade. Last week, the German government acknowledged that between 2002 and 2006, it had approved  the export to Syria of more than 100 tons of so-called dual-use chemicals. Among the substances were hydrogen fluoride, which can be used to make Teflon,  and also sarin. The exports were allowed under the condition that Syria would only use them for civilian purposes. The British government also recently acknowledged exports of dual-use chemicals to Syria.

Both the British and German governments said there’s no evidence the chemicals were used to make weapons.

It’s not the first time Germany may have turned a blind eye to potentially dangerous trade. In the 1980s, for instance, German and French companies were crucial in building poison gas plants in Iraq and Libya . Stricter export controls in Europe were only installed after a web of companies that supplied the chemical weapons programs in the Middle East was exposed in the late 1980s. The New York Times embarrassed the German government by revealing the connection between German company Imhausen-Chemie and a Libyan poison gas plant in Rabta. (Times columnist William Safire German later called the plant “ Auschwitz-in-the-sand.”)

In the following years, German authorities indicted more than 150 managers of companies involved in Saddam Hussein’s program, which he had used to kill thousands of Kurds. According to one report, from the late ‘90s, more than half of the proceedings were stopped. Most of those that went to trial were acquitted or paid fines, a handful received jail time.

Just how deeply were German companies involved in Syria’s program? We may never know.  A long-ago proposal by the German Green party to install a fact-finding commission to comprehensively investigate the web of German companies supplying Middle Eastern states – and government knowledge of these exports – was voted down by all other parties in parliament.

ProPublica Explains How Obama Administration Halted Military Aid Transparency

This article, written by Cora Currier, was originally published by ProPublica on Tuesday.

The U.S. spent roughly $25 billion last year on what’s loosely known as security assistance—a term that can cover everything from training Afghan security forces to sending Egypt F-16 fighter jets to equipping Mexican port police with radiation scanners.

The spending, which has soared in the past decade, can be hard to trace, funneled through dozens of sometimes overlapping programs across multiple agencies. There’s also evidence it’s not always wisely spent. In Afghanistan, for instance, the military bought $771 million worth of aircraft this year for Afghan pilots, most of whom still don’t know how to fly them.

Last year, legislators in the House drafted a bill that would require more transparency and evaluation of security and all foreign aid programs. The bill was championed by an unlikely coalition of Tea Party budget hawks and giant aid groups such as Oxfam America.

But the Obama administration successfully pushed to have security assistance exempted from the bill’s requirements, according to a letter obtained by ProPublica and interviews with Congressional staffers.

The Pentagon wrote that it “strongly” opposed last year’s bill in a statement to Congressional staff laying out its “informal view” last December. “The extensive public reporting requirements raise concerns,” the letter said. “Country A could…potentially learn what Country B has received in military assistance.” Foreign governments would also “likely be resistant” to monitoring and evaluation from the U.S.  Staffers say the State Department had also resisted the bill’s increased oversight of security assistance. (The State Department declined our requests to discuss that.)

Two weeks later, the House passed a version that covered only “development assistance.” The bill never made it to a vote in the Senate.

The State and Defense Departments, which handle most security assistance, “really are scared,” said a House staffer who worked on last year’s bill.  “They’re afraid of transparency about what the money is funding, where the weapons are going, who is getting training.”

As it is now, the staffer said, “some reports come two or three years after the fact, and the data is not easily manipulable.”

Increased oversight of security assistance is needed, said Walter Slocombe, former Undersecretary of Defense for Policy, who recently led a government-sponsored study on the issue. The problem is that “a lot of these programs have been developed ad hoc,” he said. “There’s not much coordination among agencies, though often they are trying to do more or less the same thing.”

New versions of the bill have been reintroduced in the House and Senate. This time, the administration’s stance isn’t clear. A spokesman for the National Security Council declined to comment, as did the Pentagon.

This year’s bill has a loophole for security spending: a waiver allowing the Secretary of State to exempt such programs if he deems it in the “national interest.”

Still, including security programs in the bill at all is “going to be a bit more difficult,” said an aide to one of the House bill’s co-sponsors, Gerry Connolly, D-Va. The exemption requires the State Department to tell Congress which programs it isn’t including, and why.

Lauren Frese, a State Department foreign assistance official said, “We support Congress’ objectives with the bill. It’s more a matter of making sure we’re not legislating something that isn’t aligned with what we’ve already got going on.” As the White House points out, it has already required agencies to be more transparent about spending on foreign aid.  Agencies must upload budget data to a central public dashboard, foreignassistance.gov, though the site’s data is currently incomplete and information from the Defense Department is available only in generic categories. The bill would turn such directives into law.

The legislation also goes further. It would require the State Department to develop guidelines for monitoring and evaluating aid’s effectiveness across agencies.

In a hearing in April, the House bill’s co-sponsor, Ted Poe, R-Texas, said that “Americans want to see [whether] the money that we’re sending to NGOs, the governments, et cetera is working or not working.”

Representative Connolly hopes the bill will help the public “better understand the rationale for aid, and the context: what a small, small part of the government’s budget it represents,” he told ProPublica. Indeed, foreign aid makes up only about 1 percent  of the federal budget.

Supporters of the bill say excluding security assistance would leave a huge gap.

In January, an independent advisory board to the State Department recommended comprehensive reform of the whole concept of security assistance, calling for concrete objectives, better long-term monitoring, and a greater emphasis on non-military programs, such as programs to strengthen justice systems. (A few months later, the White House issued a policy directive that pledged to take on many of the same issues.)

“Nobody looks at it systematically,” said Gordon Adams, who worked on national security and international affairs for the Office of Management and Budget in the 1990s and has argued for a reduced military role in security assistance. That’s in part a reflection of how the landscape of programs has grown and fragmented in recent decades. Security assistance grew 227 percent between fiscal years 2002 and 2012, to a peak of $26.8 billion, according to data collected by the Stimson Center, where Adams is a fellow. That growth comes largely from programs in Iraq and Afghanistan, which are beginning to be scaled back. This year’s budget still allocated more than $20 billion across State and Defense.

State officially oversees all foreign aid, including many programs traditionally thought of as “military,” like weapons sales, but the Pentagon expanded its portfolio of “military operations other than war” and special operations in the 1990s. After 9/11, Congress also legislated new programs related to the “war on terror,” such as the Combating Terrorism Fellowship Program and the Coalition Support Fund. With its Afghan programs, the Pentagon accounts for more than half of all security spending – not counting covert operations.

Last year, then-Defense Secretary Leon Panetta promoted training and aid to partners as “low cost and small-footprint approaches” to military objectives.

The Pentagon’s increased role in foreign aid highlights a long-standing tension between the State Department and the military, which always has more cash on hand. “If you’ve got a $600 billion budget it’s easier to squeeze in a few million dollars here and there,” said Slocombe, who chaired the study for the State Department.

Countless examples from Afghanistan illustrate the problem of lack of both long-term planning and cooperation between agencies. In 2010, ProPublica and Newsweek documented the failures of the police training program, which had by then cost $6 billion. Responsibility shifted between agencies and contractors, and State and Defense squabbled “over whether the training should emphasize police work or counterinsurgency.” Last year, in one police facility built by the Army Corps of Engineers, the inspector general for Afghanistan reconstruction found a well building being used as a chicken coop. Another encampment, designed for 175 police, was occupied by just 12. The men didn’t even have keys for many of the buildings.

Other reports found the military paid $6 million for vehicles that were destroyed or hadn’t been seen in years, and that $12.8 million in electrical equipment was sitting unused, as Defense and USAID each expected the other to install it.

Afghanistan is an exceptional case, given the scale of the spending and wartime conditions. But it also has the scrutiny of a special inspector general and a large U.S. presence. Security assistance to other countries has far fewer eyes on it – or a clear idea of what the objectives for the aid are. Empowering local police and armies can have more severe political and human rights repercussions than digging wells. “It engages us with a bunch of countries where our interests are at best opaque,” said Adams.

Some programs are designed for political and diplomatic reasons (as was long the case with arm sales to Egypt), while others are meant to build up a country’s ability to help the U.S. in its aims, such as countering terrorism or drug-dealing. In other words, giving a country what it wants, versus what the U.S. thinks it needs. (In fact, the Government Accountability Office found that branches of the military differ on which programs are supposed to do what.)

In a February testimony, the GAO said that few of the military’s training programs had looked carefully at long-term impacts. “Reporting on progress and effectiveness,” had in some cases “been limited to anecdotal information.” For example, while Yemen has received over $360 million from two of the military’s new counterterrorism programs, due to security concerns the Pentagon has yet to evaluate whether that money’s had any effect.

The House bill’s sponsors believe it could help with these problems of planning and communication. The bill “is not designed to be hostile or adversarial for the Pentagon and State Department,” said Representative Connolly. “It’s designed to provide them with a more cogent rationale for these programs.”

 

ProPublica Explains How Far Private Companies Can Go In Gathering Information About You

This post, written by  Lois Beckett, was originally published by ProPublica on March 7, 2013. It was updated with new information on Sept. 13.

We’re continuing to learn new details about how the American government is collecting bulk records of citizens’ communications — from demanding that a telephone company hand over the daily records of “all telephone calls in its systems,” to collecting an unknown number of emails, instant messages and Facebook messages.

It’s not clear how much information about ordinary people’s conversations the National Security Agency has gathered. But we do know there’s a thriving public market for data on individual Americans — especially data about the things we buy and might want to buy.

Consumer data companies scoop up large amounts of consumer information about people around the world and sell it, providing marketers details about whether you’re pregnant or divorced or trying to lose weight, about how rich you are and what kinds of cars you drive. But many people still don’t know data brokers exist.

Regulators and some in Congress have been taking a closer look at this industry, and are beginning to push the companies to give consumers more information and control over what happens to their data. The prominent data broker Acxiom recently launched aboutthedata.com, a site that allows you to review some of the information the company has connected to your name — and, potentially, edit and update it as well.

Here’s a look (originally published in March) at what we know about the consumer data industry.

How much do these companies know about individual people?

They start with the basics, like names, addresses and contact information, and add on demographics, like age, race, occupation and “education level,” according to consumer data firm Acxiom’s overview of its various categories.

But that’s just the beginning: The companies collect lists of people experiencing “life-event triggers” like getting married, buying a home, sending a kid to college — or even getting divorced.

Credit reporting giant Experian has a separate marketing services division, which sells lists of “names of expectant parents and families with newborns” that are “updated weekly.”

The companies also collect data about your hobbies and many of the purchases you make. Want to buy a list of people who read romance novels? Epsilon can sell you that, as well as a list of people who donate to international aid charities.

A subsidiary of credit reporting company Equifax even collects detailed salary and paystub information for roughly 38 percent of employed Americans, as NBC news reported. As part of handling employee verification requests, the company gets the information directly from employers.

Equifax said in a statement that the information is only sold to customers “who have been verified through a detailed credentialing process.” It added that if a mortgage company or other lender wants to access information about your salary, they must obtain your permission to do so.

Of course, data companies typically don’t have all of this information on any one person. As Acxiom notes in its overview, “No individual record ever contains all the possible data.” And some of the data these companies sell is really just a guess about your background or preferences, based on the characteristics of your neighborhood, or other people in a similar age or demographic group.

Where are they getting all this info?

The stores where you shop sell it to them.

Datalogix, for instance, which collects information from store loyalty cards, says it has information on more than $1 trillion in consumer spending “across 1400+ leading brands.” It doesn’t say which ones. (Datalogix did not respond to our requests for comment.)

Data companies usually refuse to say exactly what companies sell them information, citing competitive reasons. And retailers also don’t make it easy for you to find out whether they’re selling your information.

But thanks to California’s “Shine the Light” law, researchers at U.C. Berkeley were able to get a small glimpse of how companies sell or share your data. The study recruited volunteers to ask more than 80 companies how the volunteers’ information was being shared.

Only two companies actually responded with details about how volunteers’ information had been shared. Upscale furniture store Restoration Hardware said that it had sent “your name, address and what you purchased” to seven other companies, including a data “cooperative” that allows retailers to pool data about customer transactions, and another company that later became part of Datalogix. (Restoration Hardware hasn’t responded to our request for comment.)

Walt Disney also responded and described sharing even more information: not just a person’s name and address and what they purchased, but their age, occupation, and the number, age and gender of their children. It listed companies that received data, among them companies owned by Disney, like ABC and ESPN, as well as others, including Honda, HarperCollins Publishing, Almay cosmetics, and yogurt company Dannon.

But Disney spokeswoman Zenia Mucha said that Disney’s letter, sent in 2007, “wasn’t clear” about how the data was actually shared with different companies on the list. Outside companies like Honda only received personal information as part of a contest, sweepstakes, or other joint promotion that they had done with Disney, Mucha said. The data was shared “for the fulfillment of that contest prize, not for their own marketing purposes.”

Where else do data brokers get information about me?

Government records and other publicly available information, including some sources that may surprise you. Your state Department of Motor Vehicles, for instance, may sell personal information — like your name, address, and the type of vehicles you own — to data companies, although only for certain permitted purposes, including identify verification.

Public voting records, which include information about your party registration and how often you vote, can also be bought and sold for commercial purposes in some states.

Are there limits to the kinds of data these companies can buy and sell?

Yes, certain kinds of sensitive data are protected — but much of your information can be bought and sold without any input from you.

Federal law protects the confidentiality of your medical records and your conversations with your doctor. There are also strict rules regarding the sale of information used to determine your credit-worthiness, or your eligibility for employment, insurance and housing. For instance, consumers have the right to view and correct their own credit reports, and potential employers have to ask for your consent before they buy a credit report about you.

Other than certain kinds of protected data — including medical records and data used for credit reports — consumers have no legal right to control or even monitor how information about them is bought and sold. As the FTC notes, “There are no current laws requiring data brokers to maintain the privacy of consumer data unless they use that data for credit, employment, insurance, housing, or other similar purposes.”

So they don’t sell information about my health?

Actually, they do.

Data companies can capture information about your “interests” in certain health conditions based on what you buy — or what you search for online. Datalogix has lists of people classified as “allergy sufferers” and “dieters.” Acxiom sells data on whether an individual has an “online search propensity” for a certain “ailment or prescription.”

Consumer data is also beginning to be used to evaluate whether you’re making healthy choices.

One health insurance company recently bought data on more than three million people’s consumer purchases in order to flag health-related actions, like purchasing plus-sized clothing, the Wall Street Journal reported. (The company bought purchasing information for current plan members, not as part of screening people for potential coverage.)

Spokeswoman Michelle Douglas said that Blue Cross and Blue Shield of North Carolina would use the data to target free programming offers to their customers.

Douglas suggested that it might be more valuable for companies to use consumer data “to determine ways to help me improve my health” rather than “to buy my data to send me pre-paid credit card applications or catalogs full of stuff they want me to buy.”

Do companies collect information about my social media profiles and what I do online?

Yes.

As we highlighted last year, some data companies record — and then resell — all kinds of information you post online, including your screen names, website addresses, interests, hometown and professional history, and how many friends or followers you have.

Acxiom said it collects information about which social media sites individual people use, and “whether they are a heavy or a light user,” but that they do not collect information about “individual postings” or your “lists of friends.”

More traditional consumer data can also be connected with information about what you do online. Datalogix, the company that collects loyalty card data, has partnered with Facebook to track whether Facebook users who see ads for certain products actually end up buying them at local stores, as the Financial Times reported last year.

Is there a way to find out exactly what these data companies know about me? (Updated 9/5/2013)

Not really — although that’s beginning to change.

You have the right to review and correct your credit report. But with marketing data, there’s often no way to know exactly what information is attached to your name — or whether it’s accurate.

Most companies offer, at best, a partial picture.

In September, Acxiom debuted aboutthedata.com, which allows to you review and edit some of the company’s marketing data on you, by entering your name, address, birth date and the last four digits of your social security number.

The Federal Trade Commission’s Julie Brill tweeted that “more data brokers should follow” Acxiom’s example. But the effort received mixed reviews from users, privacy advocates and government regulators, the New York Times reported.

Previously, Acxiom only let customers review a smaller slice of the information the company sells about them, including criminal history, as New York Times reporter Natasha Singer described last year. When Singer requested and finally received her report in 2012, all it included was a record of her residential addresses.

Other companies also offer some access. A spokeswoman for Epsilon said it allows consumers to review “high level information” about their data — like whether or not you’ve purchased “home furnishings” merchandise. (Requests to review this information cost $5 and can only be made by postal mail.)

RapLeaf, a company that advertises that it has “real-time data” on 80 percent of U.S. email addresses, says it gives customers “total control over the data we have on you,” and allows them to review and edit the categories it associates with them (like “estimated household income” and “Likely Political Contributor to Republicans”).

How do I know when someone has purchased data about me?

Most of the time, you don’t.

When you’re checking out at a store and a cashier asks you for your Zip code, the store isn’t just getting that single piece of information. Acxiom and other data companies offer services that allow stores to use your Zip code and the name on your credit card to pinpoint your home address — without asking you for it directly.

Is there any way to stop the companies from collecting and sharing information about me?

Yes, but it would require a whole lot of work.

Many data brokers offer consumers the chance to “opt out” of being included in their databases, or at least from receiving advertising enabled by that company. Rapleaf, for instance, has a “Permanent opt-out” that “deletes information associated with your email address from the Rapleaf database.”

But to actually opt-out effectively, you need to know about all the different data brokers and where to find their opt-outs. Most consumers, of course, don’t have that information.

In their privacy report last year, the FTC suggested that data brokers should create a centralized website that would make it easier for consumers to learn about the existence of these companies and their rights regarding the data they collect.

How many people do these companies have information on?

Basically everyone in the U.S. and many beyond it. Acxiom, recently profiled by the New York Times, says it has information on 500 million people worldwide, including “nearly every U.S. consumer.”

After the 9/11 attacks, CNN reported, Acxiom was able to locate 11 of the 19 hijackers in its database.

How is all of this data actually used?

Mostly to sell you stuff. Companies want to buy lists of people who might be interested in what they’re selling — and also want to learn more about their current customers.

They also sell their information for other purposes, including identity verification, fraud prevention and background checks.

If new privacy laws are passed, will they include the right to see what data these companies have collected about me?

Unlikely.

In a report on privacy last year, the Federal Trade Commission recommended that Congress pass legislation “that would provide consumers with access to information about them held by a data broker.” President Barack Obama has also proposed a Consumer Privacy Bill of Rights that would give consumers the right to access and correct certain information about them.

But this probably won’t include access to marketing data, which the Federal Trade Commission considers less sensitive than data used for credit reports or identity verification.

In terms of marketing data, “we think at the very least consumers should have access to the general categories of data the companies have about consumers,” said Maneesha Mithal of the FTC’s Division of Privacy and Identity Protection.

Data companies have also pushed back against the idea of opening up marketing profiles for individual consumers’ inspection.

Even if there were errors in your marketing data profile, “the worst thing that could happen is that you get an advertising offer that isn’t relevant to you,” said Rachel Thomas, the vice president of government affairs at the Direct Marketing Association.

“The fraud and security risks that you run by opening up those files is higher than any potential harm that could happen to the consumer,” Thomas said.

 

 

ProPublica On U.S. Aid To Egypt: Where Does All Of The Money Go?

This ProPublica article, written by Marian Wang and Theodoric Meyer, has been updated to reflect new developments. It was first published on Jan. 31, 2011.

Questions about the United States’ aid to Egypt have intensified in the wake of last month’s military coup. More than 1,000 Egyptians have been killed in the last week, most apparently supporters of ousted president Mohamed Morsi. A few members of Congress have called for cutting off aid to Egypt, which the White House says is under review.

We’ve taken a step back and tried to answer some basic questions about the aid, including how much the U.S. is giving Egypt, what’s changed in the years since the Arab Spring and what all the money buys.

How much does the U.S. spend on Egypt?

Egypt receives more U.S. aid than any country except for Israel, Afghanistan, Pakistan and Iraq.

The exact amount varies from year to year and there are many different funding streams, but U.S. foreign assistance to Egypt has averaged about $2 billion a year since 1979, when Egypt struck a peace treaty with Israel. Most of that goes toward military aid. President Obama’s 2014 budget tentatively includes $1.55 billion in aid, about the same amount the U.S. has sent in recent years.

Has any of the aid been cut off?

Actually, yes, but only economic aid, and only some of that. State Department has put a hold on some programs financed by the $250 million in annual economic aid to Egypt, including training programs in the U.S. for Egyptian hospital administrators, teachers and other government workers.

What about the military aid?

The administration delayed a scheduled delivery of four F-16 fighters to Egypt last month, and it is considering a similar delay for a shipment of Apache attack helicopters and repair kits for tanks. But the White House has not actually cut-off military aid, which has held steady at about $1.3 billion since 1987.  (Economic aid, meanwhile, has fallen by more than two-thirds since 1998.)

American officials say that military aid doesn’t just promote peace between Egypt and Israel, it also gives the U.S. benefits such as “expedited processing” for U.S. Navy warships when they pass through the Suez Canal. A 2009 U.S. embassy cable released by WikiLeaks makes essentially the same point:

President Mubarak and military leaders view our military assistance program as the cornerstone of our mil-mil relationship and consider the USD 1.3 billion in annual FMF as “untouchable compensation” for making and maintaining peace with Israel. The tangible benefits to our mil-mil relationship are clear: Egypt remains at peace with Israel, and the U.S. military enjoys priority access to the Suez Canal and Egyptian airspace.

According to the State Department, the military aid has included tanks, armored personnel carriers, antiaircraft missile batteries and surveillance aircraft in addition to the F-16 fighters and Apache attack helicopters. In the past, the Egyptian government has bought some of the weapons on credit.

How important is the aid to Egypt?

Pretty important. Saudi Arabia, which along with other Persian Gulf countries pledged $12 billion in aid to Egypt after the coup, promised this week to make up the difference in any aid cut by the U.S. or other Western nations. But much of the aid can’t easily be replaced, in particular fancy U.S. weapons and replacements parts for them.

Does the aid require Egypt to meet any specific conditions regarding human rights?

Not really. When an exiled Egyptian dissident called on the U.S. to attach conditions to aid to Egypt in 2008, Francis J. Ricciardone Jr., who had recently stepped down as the U.S. ambassador to Egypt, told the Washington Post the idea was “admirable but not realistic.” And then-Defense Secretary Robert Gates said in 2009 that military aid “should be without conditions” at a Cairo press conference.

Sen. Patrick Leahy, a Vermont Democrat, led Congress in adding language to a spending bill in 2011 to make aid to Egypt conditional on the secretary of state certifying that Egypt is supporting human rights and being a good neighbor. The language requires that Egypt abide by the 1979 peace treaty with Israel, support “the transition to civilian government including holding free and fair elections,” and put in place policies to protect freedom of expression, association, and religion, and due process of law.” It sounds pretty tough, but it’s not.

Has American aid to Egypt ever been cut off?

No. Congress threatened to block aid last year when Egypt began a crackdown on a number of American pro-democracy groups. A senior Obama administration official said that then-Secretary of State Hillary Rodham Clinton had no way to certify the conditions set out in the spending bill were being met.

But Clinton waived the certification requirement (yes, the secretary of state can do that) and approved the aid, despite concerns about Egypt’s human rights record. The reason? “A delay or cut in $1.3 billion in military aid to Egypt risked breaking existing contracts with American arms manufacturers that could have shut down production lines in the middle of President Obama’s re-election campaign,” the New York Times reported. Breaking the contracts could have left the Pentagon on the hook for $2 billion.

Doesn’t the U.S. have to cut off foreign aid after a coup?

The Foreign Assistance Act mandates that the U.S. cut aid to any country “whose duly elected head of government is deposed by military coup or decree.” But last month the White House decided that it was not legally required to decide whether Morsi, who was democratically elected last year, was the victim of a coup 2014 which allowed the aid to keep flowing. “We will not say it was a coup, we will not say it was not a coup, we will just not say,” an anonymous senior official told the New York Times.

As the Washington Post’s Max Fisher points out, Obama and his predecessors have dealt this kind of thing before. The president cut some aid to Honduras after a coup in 2009 and to Mali and the Central African Republic after coups there in 2012, but not all of it. And those countries aren’t nearly as important to U.S. foreign policy as Egypt. President Bill Clinton cut some aid to Pakistan after a coup there in 1999, but President George W. Bush reinstated all of it after the Sept. 11, 2001, attacks.

Obama’s refusal to call it a coup infuriated Morsi supporters. “What is a coup?” Wael Haddara, a senior adviser to Morsi, told the New York Times. “We’re going to get into some really Orwellian stuff here.”

What about economic aid and efforts to promote democracy?

The various economic aid efforts have had mixed results. The State Department has described the Commodity Import Program, which gave Egypt millions of dollars between 1986 and 2008 to import American goods, as “one of the largest and most popular USAID programs.” But an audit of the four-year, $57 million effort to create agricultural jobs and boost rural incomes in 2007 found that the program “has not increased the number of jobs as planned.” And an audit of a $151 million program to modernize Egypt’s real estate finance market in 2009 found that, while the market had improved since the program began, the growth was “not clearly measurable or attributable” to the aid efforts.

The U.S. has also funded programs to promote democracy and good government in Egypt 2014 again with few results. It has sent about $24 million a year between 1999 and 2009 to a variety of NGOs in the country. According to a 2009 inspector general’s audit, the efforts didn’t add much due to “a lack of support” from the Egyptian government, which “suspended the activities of many U.S. NGOs because Egyptian officials thought these organizations were too aggressive.”

recent audit of the European Union’s 20AC1 billion 2014 about $1.35 billion 2014aid program found that it had been “well-intentioned but ineffective” in promoting good governance and human rights. And a WikiLeaks cable revealed the Egyptian government had asked USAID in 2008 to stop financing NGOs that weren’t properly registered.

 

ProPublica Explains A Powerful Legal Tool, and Its Potential for Abuse

This story, written by Joaquin Sapien for ProPublica, was updated by the publication to include a recent decision by the U.S. Court of Appeals for the Second Circuit in the case of a Queens woman who says she was illegally held as a material witness in 2008.

The 20-year-old document labeled the Hotel Custody log by the Brooklyn District Attorney’s office is not easy to decipher. It contains a list of New York City hotels beside columns labeled “Date In” and “Date Out.” There are names of individual prosecutors and the units they worked for at the district attorney’s office.

A spokesman for the district attorney’s office, asked to explain the document, refused to say anything. And a judge recently placed the document under seal at the request of lawyers for the city.

Ruddy Quezada and his lawyers, however, are pretty sure they have figured the document out, and that it in particular the third line from the bottom holds a key to Quezada’s freedom after more than 20 years behind bars for a murder he insists he didn’t commit.

Quezada’s lawyers assert that the document is a record of witnesses in criminal trials held in hotel rooms by the district attorney in the winter of 1993. Some of the witnesses were prisoners released to testify and held overnight in custody. Others were witnesses who were fearful for their safety.

But some on the list were held under what are known in the criminal justice system as material witness orders, men and women who were deemed “uncooperative,” arrested by detectives and not freed until they agreed to testify.

Most specifically, Quezada’s lawyers say that on March 11, 1993, a man named Sixto Salcedo was checked into the Holiday Inn Crowne Plaza. Salcedo, they say, was released the following day, after he agreed to do what prosecutors wanted: testify that he had seen Ruddy Quezada shoot dead a man named Jose Rosado on the streets of Brooklyn.

Salcedo did testify, and Quezada was convicted. But a lot has happened since Salcedo has recanted his testimony, another man has confessed to the murder, and Quezada has asked a federal judge to free him from prison. And much of what happens next could turn on what took place at the Crowne Plaza that night 20 years ago.

Salcedo now says in sworn testimony that he never saw Quezada shoot anyone, and that he only agreed to say otherwise after he had been arrested on a material witness order, threatened by detectives and held overnight in one of the hotels used by the district attorney’s office.

“I’m not trying to justify myself,” Salcedo said in the sworn statement, “I’m just trying to have a clear conscience, since I regret the harm that I have caused.”

For some defense lawyers in New York, the Quezada case is just one example of a wider abuse of material witness orders.

The orders are meant to help prosecutors compel testimony from problematic witnesses in criminal cases. But the orders, which must be signed by judges, are supposed to be used only in extraordinary circumstances, as a kind of last resort, often when prosecutors fear a potential witness might flee instead of testifying.

Prosecutors are required to honor basic protocols aimed at protecting the rights of such witnesses: once detained, they are to be brought directly before a judge and provided with a lawyer. A hearing is then supposed to be held to explore the reasons behind a witness’ reluctance to testify: Is it fear? Possible complicity in the crime? Or are witnesses being intimidated into testifying falsely?

Determining much about the use of material witness orders is not easy. Court administrators in New York State are able to say that prosecutors continue to seek them and judges continue to grant them, but can’t say definitively how often the orders are issued or whether prosecutors abide by the law in executing them.

A spokesman for the Queens District Attorney said prosecutors in the office always take such witnesses before a judge. But the city’s other four district attorneys told ProPublica they would not answer questions about how material witness orders are handled by their offices.

But the Quezada case is not the only one dealing with the possible abuse of material witness orders to have surfaced in recent years. Some defense lawyers say they are concerned about how often local prosecutors might have disregarded the safeguards meant to protect the witnesses.

A lawyer for a Queens woman who says she was illegally held as a material witness in 2008 is now pressing to hold prosecutors accountable, seeking to find them personally liable. She scored a considerable victory in her effort this week when a three-judge panel on the U.S. Court of Appeals for the Second Circuit held that prosecutors in the case were not entitled to “absolute immunity” from her lawsuit, and ordered the case to be reconsidered by a district court.

“A material witness warrant secures a witness’s presence at a trial or grand jury proceeding,” Judge Gerard E. Lynch of the Second Circuit wrote in an opinion made public Friday. “It does not authorize a person’s arrest and prolonged detention for purposes of investigative interrogation by the police or a prosecutor.”

Another lawyer, Joel Rudin, has asked a federal judge in Brooklyn to force the Brooklyn District Attorney to turn over its records concerning the detention of witnesses in hotels over the years. Rudin, who is suing the city over a wrongful conviction that was achieved in part by the abuse of a material witness order, already has won rare access to some material.

Rudin said some witnesses held in hotels were formally classified as prisoners; they may have been inmates brought to court to testify in a criminal trial. But scores of others on the logs he has seen were likely innocent men and women who were being detained under material witness orders, he said.

“If they were not happening in Brooklyn, we would associate such practices with a police state,” Rudin said in court documents filed in May.

The Brooklyn District Attorney declined to respond to Rudin’s allegations.

Controversy arose around federal prosecutors’ deployment of material witness orders after 9/11, when it came to light that they had used the warrants to detain large numbers of people to provide information about terror cases.

But the use of these orders at the state-level remains largely unexamined. In New Jersey, legislators adopted reforms to the state’s material witness statute two decades ago, prompted by a case in which a man was held in jail to testify against a defendant who hadn’t even been charged with a crime yet.

The reforms came after a state commission surveyed the laws on material witness orders across the country.

“Some states had some protections for witnesses, some had none, but no state had a comprehensive set of protections,” said John Cannel, a member of the New Jersey Law Revision Commission, an arm of the state legislature.

One Living Witness, Perhaps Too Valued

Jose Rosado was killed in a drive-by shooting in the crime-ridden Brownsville section of Brooklyn on Oct. 19, 1991. Ruddy Quezada was arrested for the crime, based on the statements to police of two alleged eyewitnesses: Sixto Salcedo and John Delacruz.

But by the time prosecutors were preparing for trial in late 1992, Salcedo was the only witness alive. Delacruz had turned up dead in the Bronx, leaving prosecutors with a badly weakened case without Salcedo’s testimony.

But Salcedo now says that in the run-up to Quezada’s trial he was no longer so certain about what he’d seen that night and refused to testify. Frustrated by Salcedo, prosecutors went to a judge in December 1992 to get an order to arrest him, and question him about just how uncertain he really was.

Salcedo says he eventually was picked up by an investigator with the Brooklyn District Attorney’s office, and brought to the Crowne Plaza hotel. Salcedo says he was never brought before a judge or provided with an attorney, and the Brooklyn District Attorney’s office has offered no evidence to the contrary.

Instead, he got a night with a New York Police Detective named Thomas Buda, who, according to court filings, threatened Salcedo with jail if he didn’t cooperate with prosecutors. Salcedo relented and testified the next day.

At trial he said he was standing in front of a bodega when he saw a black Cadillac with the headlights turned off pull up across the street. Quezada was in the passenger seat. He raised a machine gun and fired multiple shots out of the window.

“I saw him,” Salcedo said of Quezada, according to records of the trial. “I saw his face and then I saw some movement, then the shots, then we ran.”

The prosecutor, Ephraim Shaban, reassured the jury that Salcedo had come forward voluntarily.

Quezada, then 30, was convicted of second-degree murder and sentenced to 25 years to life in state prison.

Quezada immediately began to file appeals. And he eventually pressed for information concerning the circumstances of Salcedo’s testimony. He and his lawyers wanted to know if Salcedo had been arrested under a material witness order prior to trial.

For nearly a decade, in court filings and hearings, the Brooklyn District Attorney’s office insisted there was no material witness order used to compel Salcedo’s testimony. State judges accepted the district attorney’s claims. Quezada’s appeals were rejected.

But in 2011, close to 20 years after Quezada’s conviction, prosecutors produced what they had long insisted didn’t exist: a warrant to arrest Salcedo signed by Judge Abraham Gerges on Feb. 8, 1993. It stated that Salcedo should be brought “before the court forthwith” for a hearing to determine whether he did in fact have testimony relevant to the case and whether he should be held in police custody. Quezada’s lawyers also were given the page of the hotel custody log that recorded Salcedo’s night at the Crowne Plaza hotel.

The Brooklyn District Attorney’s office offered no explanation or apology for its failure to turn over the material earlier.

A federal court is now deciding whether to hold a hearing to examine Quezada’s claim of innocence.

Rudin, who is representing a wrongfully convicted Brooklyn man named Jabbar Collins in a multimillion-dollar lawsuit against New York City, suspects the abuse of material witness orders has been a regular feature of the way the Brooklyn District Attorney’s office did business over the years.

Collins, convicted of killing a Brooklyn rabbi in 1995, was told for years that an order used to prompt the testimony of a critical and damning witness in the case against him didn’t exist. Rudin ultimately found that to be false. Much like Quezada’s lawyers, he found that the key witness was picked up on a material witness order and then held for several days before he testified.

Rudin is now digging into the office’s use of material witness orders to bolster his accusation that there has been systemic misconduct in the Brooklyn District Attorney’s office. As part of that effort, Rudin has obtained the sworn testimony of Christopher Salsarulo, a former investigator for the district attorney’s office who says he executed many material witness orders during his three years with the office.

Salsarulo said in his sworn testimony that he received next to no training on how to properly execute a material witness order. He says nothing about bringing witnesses before judges or getting them lawyers.

Salsarulo said he was simply told “to do your best to find the material witness and bring her back to the DA’s office.” Salsarulo said material witnesses were sometimes put in handcuffs and taken to locked hotel rooms under armed guard.

The Brooklyn District Attorney’s office has denied Rudin’s claim that the office ran a rogue operation in which witnesses were routinely jailed and coerced into testifying falsely. To date, the office has not responded to Salsarulo’s portrayal of how material witnesses were handled.

Salsarulo, in his affidavit, painted a vivid picture of how uncooperative witnesses were dealt with, and how such treatment could produce useful testimony.

Witnesses, he said, would be left handcuffed in their underwear.

“You like pants?” Salsarulo said he would ask the witness.

Salsarulo, who now works as an agent for the U.S. Drug Enforcement Administration in New Jersey, said the technique often worked.

“If they’re compliant,” he said of the jailed witnesses, “we dress them and give them water, whatever they need so they would be comfortable.”

“I Didn’t Want to Come to Trial”

At 6 a.m. one January morning in 1992, 19-year-old Michael Thompson was asleep in his mother’s apartment on Avenue C in Manhattan when police rousted him from bed, according to court records. They had a material witness order to bring him before a judge and explore why he had been resistant to testify in a murder case. Six months earlier, Thompson had told police he’d seen someone shoot a man outside a Manhattan nightclub. He’d said he could identify the dead man, and his killer, a man named Fernando Bermudez.

But police and prosecutors had become frustrated over the months by what they viewed as Thompson’s lack of cooperation.

According to court documents, Thompson repeatedly told a Manhattan homicide prosecutor, James Rodriguez, that he didn’t want to testify against Bermudez. He told Rodriguez he’d never been sure of what he had seen that night outside the club.

But Rodriguez wasn’t persuaded. Several other witnesses had also identified Bermudez as the shooter. Rodriguez was determined to have Thompson testify. And so Rodriguez went before Manhattan Judge John A.K. Bradley, and obtained a material witness order authorizing his arrest.

Under New York law, Thompson should’ve been taken before a judge immediately after his arrest. But testimony and court records indicate that didn’t happen. He was supposed to get a lawyer. That didn’t happen. Instead, police drove him directly to the Manhattan District Attorney’s office to meet Rodriguez.

The Manhattan District Attorney’s office, which is now being sued by Bermudez, has declined to comment on the case.

In court filings, city attorneys representing the Manhattan District Attorney have denied any wrongdoing in the case. They claim that neither Thompson, nor any other witness, was pressured to testify falsely. To the contrary, they’ve suggested that the witnesses who recanted did so only as a result of pressure from Bermudez. Rodriguez, the prosecutor on the case, no longer works for the Manhattan District Attorney.

Thompson had been at the scene when Raymond Blount, his 16-year-old friend, was shot to death outside the club. He and others later picked Bermudez’s photograph out of a smattering of pictures provided by police in the days following the shooting. Thompson also picked Bermudez out of a line-up. But the photo was just of his face. And during the line-up, Bermudez never stood up, so Thompson couldn’t see how tall he was.

The man who shot Blount, Thompson said, was 5’8″ or 5’9″ and weighed about 160 pounds. Bermudez was 6’2″ and about 215 pounds.

Thompson says he repeated his concerns to Rodriguez at the office that day he was picked up.

“I didn’t want to come to trial. I kept telling the ADA this because I doubted the identification. It was dark when Raymond got shot, and late,” Thompson said in a sworn statement he signed a year after the trial.

Police had found a toy gun in Thompson’s bedroom that morning. Thompson, who already had a criminal record, said he feared they’d make a case against him for it.

So he testified against Bermudez, as did several others.

“Before I went into the trial court the ADA took me and Frank Kent into his office to rehearse us. I was mad at what I had to do,” Thompson said in his sworn statement. “When I was in court I wasn’t sure no more of what to do. I remember looking at the defendant and thinking 2018he ain’t the kid who did it.’ I said what I was told to say by the ADA2026 I know now that it was a mistake.”

Bermudez was convicted and given a sentence of 23 years to life.

A year later, all of the witnesses recanted, including Thompson.

After nearly two decades in prison, the case finally imploded completely. State Judge John Cataldo found that Thompson’s forced false testimony was one of a raft of problems with the prosecution of Bermudez: the witnesses, teenagers all, viewed pictures of Bermudez and discussed them while they were all grouped together, violating basic police procedure and rendering their identifications unreliable; one witness feared being charged with the crime himself, and a substantial amount of evidence implicated another gunman.

In the case of Thompson, Cataldo found that he was arrested and threatened in secret, resulting in false testimony that contributed to a wrongful conviction.

“He was arrested and taken to the trial Assistant and told to make the identification or see if the judge would jail him for his lack of cooperation. The resulting testimony was tainted by these actions,” Cataldo said in a 79-page decision.

Thompson and another witness against Bermudez, Cataldo ruled, were left with a “feeling they had no recourse but to walk into court and identify Mr. Bermudez as the shooter, no matter what their doubts might have been.”

A Rare Review for an Overlooked Statute

In the late 1980s, New Jersey’s Hackensack River was suffering from decades of heavy industrial pollution. The 50-mile-long river had absorbed the waste of the state’s booming chemical processing industry. There were high levels of lead, cadmium, petroleum products, and other toxic refuse.

In 1989, state prosecutors were trying to hold polluters to account, and they thought they’d found someone who could help them: a man named Janos Misik, a low-level employee who worked for the Petro King Terminal Corp., a company suspected of dumping petroleum into the river. But Misik failed to attend a scheduled appointment with prosecutors. The prosecutors obtained a material witness order from a state judge and arrested Misik.

Misik’s attorney objected to the arrest. Misik’s employer hadn’t even been indicted, the attorney pointed out; therefore the state had no business obtaining a material witness order to pick him up.

A state judge ultimately found that prosecutors used the warrant as an “oppressive tool which amounted to a clear abuse of the court’s process,” and also identified some glaring deficiencies in the New Jersey law governing material witness orders. For one thing, the judge noted, the statute was over a century old. Second, it didn’t even define the term “material witness.” It didn’t include standards for determining the circumstances under which a witness could be arrested.

The judge suggested the state legislature undertake a review of the law.

So a case of toxic waste dumping, it turned out, gave rise to an uncommon inquiry on the long-obscure issue of material witnesses.

The New Jersey Law Revision Commission2014 an investigative arm of the state’s legislature2014 began examining the state’s material witness law in 1990.

Comprised of deans from three New Jersey law schools, two state legislators, and four practicing attorneys, the commission spent nearly two years analyzing academic work on the subject, case law and material witness statutes from all over the country.

It found that other state statutes were similarly out of date. So in 1992, the commission suggested its own reforms and the state legislature adopted them in 1994.

In order to obtain a material witness order from a judge, a New Jersey prosecutor now has to prove by clear and convincing evidence that the person does indeed have information material to the case and will not agree to cooperate.

When judges authorize such orders, witnesses have to be brought immediately to court for hearings in which judges evaluate their testimony and determine whether they need to be held in custody.

To date, there has been no similar move to examine New York’s statute.

At ProPublica’s request, Professor Bennett Gershman, a leading expert on prosecutorial misconduct, reviewed the material witness laws for New Jersey and New York. He suggested that they’re actually quite similar. The laws are not problematic, Gershman said, but rather the compliance of prosecutors with them.

“These are strong-arm tactics under the guise of something that looks official to bring people into the D.A.’s office or hotel room or some other place where the witness is being held secretly incommunicado and the witness is interrogated,” said Gershman, who has closely followed the New York cases involving material witnesses. “It’s possible that material witness order laws are being bypassed in New York as a matter of policy.”

The Sweeping Presidential Power To Help Prisoners That Holder Didn’t Mention

This ProPublica Article by Cora Currier, published Wednesday, examines the Obama Administration’s Spartan invocation of the power of the Presidential Pardon, alongside Attorney General Eric Holder’s arbitrary interpretation of his own promise to get “smart on crime.” Taken together, they demonstrate a mystifying take on Americans’ due process and civil liberties; one that veers closer to totalitarianism than to liberalism in its classic sense.

 

by Cora Currier

This week, Attorney General Eric Holder spoke out against the impacts of “draconian” sentences for nonviolent drug offenders. “Too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” said Holder.

But in unveiling the new “smart on crime” initiative, Holder skipped mention of the sweeping power the president has to shorten or forgive a federal prisoner’s sentence.

President Obama has given just one person early release from prison. As ProPublica has documented, Obama has overall granted clemency at a lower rate than any modern president, which includes both commutations – early release – and pardons. Last year, ProPublica reported that the Justice Department’s Office of the Pardon Attorney rarely gives positive clemency recommendations to the president. Experts have been calling for reform of the entire clemency process.

“Holder’s speech begs the question, why is not more attention given to the broken pardons office?” said Robert Ehrlich, a former Republican governor of Maryland who recently started a law clinic devoted to pardons.

One person who is still waiting to hear about his petition for commutation is Clarence Aaron. He has been in prison since 1993, when he was sentenced to three life terms for his role in a drug deal. Aaron was not the buyer, seller, nor supplier of the drugs. It was his first criminal offense.

The White House ordered a fresh review of Aaron’s petition last year after ProPublica found that the  pardon attorney, Ronald Rodgers, had misrepresented Aaron’s case when it was brought to President George W. Bush. An Inspector General’s report released in December supported ProPublica’s findings, and referred the incident to the Deputy Attorney General to determine if “administrative action is appropriate.”

Nine months later, Justice Department spokesman Wyn Hornbuckle says the “issues raised in the report are still being examined.”

In his speech, Holder expressed concern about racial disparities in sentencing and treatment of prisoners. In 2011, a ProPublica investigation found that whites were four times as likely to receive pardons as minorities. Following our story, the Justice Department commissioned a study on racial disparities in pardons. Hornbuckle says that study is “ongoing.”

“The clemency process will need to be invigorated both from the bottom up and the top down,” said Jeffrey Crouch, a professor at American University, who wrote a book on pardons. “One step is the pardon attorney giving applicants a fair review and a positive recommendation. The other step is President Obama being more willing to use his pardon power.”

For now, Holder’s initiative has little to offer prisoners already behind bars. He directed prosecutors to avoid charges that carried mandatory minimum sentences for certain low-level, nonviolent drug offenders and urged the passage of legislation to change those sentencing requirements. But in 2010, there were more than 75,000 people in federal custody that had been given mandatory sentences.

“We’ve been getting a lot of calls asking, does this mean my loved one gets to go home?” said Molly Gill, government affairs counsel at Families Against Mandatory Minimums. “For the vast majority of people it doesn’t change their sentences and it isn’t retroactive.” (Holder did expand “compassionate release” for some elderly prisoners.)

While clemency does not generally reach wide swaths of prisoners, Presidents Gerald Ford and Jimmy Carter used it to affect policy on a larger scale, creating programs to forgive thousands of Vietnam War draft evaders.

In the 1960s, Attorney General Robert F. Kennedy also took a stand against what he described as “grossly unjust” outcomes of sentencing practices – and used commutations to do so. He directed federal prison wardens to seek out and bring him prisoners deserving of early release. Kennedy acknowledged that presidential commutations were “at best only stop-gaps” in a sentencing regime that needed reform. President John F. Kennedy commuted 100 sentences in total, and President Lyndon B. Johnson 226.

Mark Osler, a law professor at St. Thomas University who runs a clinic on commutations, said Obama could also do more. “Holder’s emphasis on how wrong these laws have been, and how damaging the Justice Department’s enforcement of those laws has been, gives me hope that this only the first step,” Osler said.

ProPublica: Does the U.S. Pay Families When Drones Kill Innocent Yemenis?

This piece, written by Cora Currier of ProPublica, was originally published Aug. 12, 2013.

There have been nine drone strikes reported in Yemen in the past two weeks, an uptick apparently connected to the Al Qaeda threat that shut down U.S. embassies across the Middle East and Africa. As many as six civilian deaths have also been reported.

President Obama has promised increased transparency around drones, but when asked about the strikes on Friday, Obama wouldn’t even confirm U.S. involvement.

“I will not have a discussion about operational issues,” he said.

The military is also following that line, refusing to release details about what happens when civilians are harmed in these strikes, including if and how families of innocent victims are compensated.

In response to a Freedom of Information Act request, U.S. Central Command told ProPublica it has 33 pages somehow related to condolence payments in Yemen 2013 but it won’t release any of them, or detail what they are.

The military’s letter rejecting our FOIA cites a series of reasons, including classified national security information. (Here’s the letter.)

There’s no way to know what the military is withholding. A Pentagon spokesman told us they haven’t actually made condolence payments in Yemen. But CIA director John Brennan said during his confirmation process in February that the U.S. does offer condolence payments to the families of civilians killed in U.S. strikes. (Both the military and CIA fly drones over Yemen.)

In May, the White House released new guidelines for targeted killing, saying that there must be a “near certainty that non-combatants will not be injured or killed.” But the administration has said little about how civilian deaths are assessed or handled when they do occur. It has refused to address the U.S. role in almost any particular death 2013 including that of a 10-year-old boy, killed a few weeks after Obama’s promise of increased transparency.

Outside reporting on drone strike deaths is spotty and often conflicted. On Sunday, a Yemeni activist and journalist named three civilians who had been injured, “just hanging arnd n thir neighborhood.” Another recent strike killed up to five “militants,” according to Reuters and other news agencies. But Yemenis reported on Twitter that a child was also killed. (The White House declined to comment to ProPublica on the recent strikes or on condolence payments.)

In Afghanistan, the U.S. has long given out condolence payments, which military leaders have come to see as a key part of the battle for hearts and minds. What might seem like a callous exercise 2013 assigning a dollar amount to a human life 2013 is also embraced by many humanitarian groups. The Center for Civilians in Conflict, for example, sees it as a way to help families financially and as “a gesture of respect.” In fiscal year 2012, condolence payments in Afghanistan totaled nearly a million dollars.

It’s likely harder to do that in the drone war. Military and intelligence leaders have expressed concern about “blowback” from local populations resentful of the strikes. But the U.S. has no visible troops on the ground in countries like Yemen or Pakistan, and almost never acknowledges specific strikes.

Despite the recent surge, overall there have been far fewer drone strikes and civilian deaths alleged in 2013 than in previous years.

For more on the U.S.’ shadowy drone war, read ProPublica’s latest story, “Who Are We at War With? That’s Classified,” coverage of the controversial practice of “signature strikes“, and the organization’s chat with national security reporters on the challenges of covering a remote and secret war.

 

The Surveillance Reforms Obama Supported Before He Was President

This story, written by Jonathan Stray for ProPublica, was originally published on Aug. 7, 2013.

When the House of Representatives recently considered an amendment that would have dismantled the NSA’s bulk phone records collection program, the White House swiftly condemned the measure. But only five years ago, Sen. Barack Obama, D-Ill. was part of a group of legislators that supported substantial changes to NSA surveillance programs. Here are some of the proposals the president co-sponsored as a senator.

As a senator, Obama wanted to limit bulk records collection.

Obama co-sponsored a 2007 bill, introduced by Sen. Russ Feingold, D-Wis., that would have required the government to demonstrate, with “specific and articulable facts,” that it wanted records related to “a suspected agent of a foreign power” or the records of people with one degree of separation from a suspect. The bill died in committee. Following pressure from the Bush administration, lawmakers had abandoned a similar 2005 measure, which Obama also supported.

We now know the Obama administration has sought, and obtained, the phone records belonging to all Verizon Business Network Services subscribers (and reportedly, Sprint and AT&T subscribers, as well). Once the NSA has the database, analysts search through the phone records and look at people with two or three degrees of separation from suspected terrorists.

The measure Obama supported in 2007 is actually similar to the House amendment that the White House condemned earlier this month. That measure, introduced by Reps. Justin Amash, R-Mich., and John Conyers, D-Mich., would have ended bulk phone records collection but still allowed the NSA to collect records related to individual suspects without a warrant based on probable cause.

The 2007 measure is also similar to current proposals introduced by Conyers and Sen. Bernie Sanders, I-Vt.

As a senator, Obama wanted to require government analysts to get court approval before accessing incidentally collected American data.

In Feb. 2008, Obama co-sponsored an amendment, also introduced by Feingold, which would have further limited the ability of the government to collect any communications to or from people residing in the U.S.  

The measure would have also required government analysts to segregate all incidentally collected American communications. If analysts wanted to access those communications, they would have needed to apply for individualized surveillance court approval.

The amendment failed 35-63. Obama later reversed his position and supported what became the law now known to authorize the PRISM program. That legislation 2014 the FISA Amendments Act of 2008 2014 also granted immunity to telecoms that had cooperated with the government on surveillance.

The law ensured the government would not need a court order to collect data from foreigners residing outside the United States. According to the Washington Post, analysts are told that they can compel companies to turn over communications if they are 51 percent certain the data belongs to foreigners.

Powerpoint presentation slides published by the Guardian indicate that when analysts use XKeyscore 2014 the software the NSA uses to sift through huge amounts of raw internet data 2014 they must first justify why they have reason to believe communications are foreign. Analysts can select from rationales available in dropdown menus and then read the communications without court or supervisor approval.

Finally, analysts do not need court approval to look at previously-collected bulk metadata either, even domestic metadata. Instead, the NSA limits access to incidentally collected American data according to its own “minimization” procedures. A leaked 2009 document said that analysts only needed permission from their “shift coordinators” to access previously-collected phone records. Rep. Stephen Lynch, D-Mass., has introduced a bill that would require analysts to get special court approval to search through telephone metadata.

As a senator, Obama wanted the executive branch to report to Congress how many American communications had been swept up during surveillance.

Feingold’s 2008 amendment, which Obama supported, would have also required the Defense Department and Justice Department to complete a joint audit of all incidentally collected American communications and provide the report to congressional intelligence committees. The amendment failed 35-63.

The Inspector General of the Intelligence Community told Senators Ron Wyden, D-Ore., and Mark Udall, D-Co. last year that it would be unfeasible to estimate how many American communications have been incidentally collected, and doing so would violate Americans’ privacy rights.

As a senator, Obama wanted to restrict the use of gag orders related to surveillance court orders.

Obama co-sponsored at least two measures that would have made it harder for the government to issue nondisclosure orders to businesses when compelling them to turn over customer data.

One 2007 bill would have required the government to demonstrate that disclosure could cause one of six specific harms: by either endangering someone, causing someone to avoid prosecution, encouraging the destruction of evidence, intimidating potential witnesses, interfering with diplomatic relations, or threatening national security. It would have also required the government to show that the gag order was “narrowly tailored” to address those specific dangers. Obama also supported a similar measure in 2005. Neither measure made it out of committee.

The Obama administration has thus far prevented companies from disclosing information about surveillance requests. Verizon’s surveillance court order included a gag order.

Meanwhile, Microsoft and Google have filed motions with the Foreign Intelligence Surveillance Court seeking permission to release aggregate data about directives they’ve received. Microsoft has said the Justice Department and the FBI had previously denied its requests to release more information. The Justice Department has asked for more time to consider lifting the gag orders.

As a senator, Obama wanted to give the accused a chance to challenge government surveillance.

Obama co-sponsored a 2007 measure that would have required the government to tell defendants before it used any evidence collected under the controversial section of the Patriot Act. (That section, known as 215, has served as the basis for the bulk phone records collection program.) Obama also supported an identical measure in 2005.

Both bills would have ensured that defendants had a chance to challenge the legalityof Patriot Act surveillance. The Supreme Court has since held that plaintiffs who cannot prove they have been monitored cannot challenge NSA surveillance programs.

Those particular bills did not make it out of committee. But another section of the Foreign Intelligence Surveillance Act requires that the government tell defendants before it uses evidence collected under that law.

Until recently, federal prosecutors would not tell defendants what kind of surveillance had been used.

The New York Times reported that in two separate bomb plot prosecutions, the government resisted efforts to reveal whether its surveillance relied on a traditional FISA order, or the 2008 law now known to authorize PRISM. As a result, defense attorneys had been unable to contest the legality of the surveillance. Sen. Dianne Feinstein, D-Calif., later said that in both cases, the government had relied on the 2008 law, though prosecutors now dispute that account.

On July 30, the Justice Department reversed its position in one bomb plot prosecution. The government disclosed that it had not gathered any evidence under the 2008 law now known to authorize sweeping surveillance.

But that’s not the only case in which the government has refused to detail its surveillance. When San Diego cab driver BasaalySaeedMoalin was charged with providing material support to terrorists based on surveillance evidence in Dec. 2010, his attorney, Joshua Dratel, tried to get the government’s wiretap application to the Foreign Intelligence Surveillance Court. The government refused, citing national security.

Dratel only learned that the government had used Moalin’s phone records as the basis for its wiretap application 2014 collected under Section 215 of the Patriot Act 2014 when FBI Deputy Director Sean Joyce cited the Moalin case as a success story for the bulk phone records collection program.

Reuters has also reported that a U.S. Drug Enforcement Administration unit uses evidence from surveillance to investigate Americans for drug-related crimes, and then directs DEA agents to “recreate” the investigations to cover up the original tip, so defendants won’t know they’ve been monitored.

As a senator, Obama wanted the attorney general to submit a public report giving aggregate data about how many people had been targeted for searches.

Under current law, the attorney general gives congressional intelligence committees a semiannual report with aggregate data on how many people have been targeted for surveillance. Obama co-sponsored a 2005 bill that would have made that report public. The bill didn’t make it out of committee.

Despite requests from Microsoft and Google, the Justice Department has not yet given companies approval to disclose aggregate data about surveillance directives.

As a senator, Obama wanted the government to declassify significant surveillance court opinions.

Currently, the attorney general also gives congressional intelligence committees “significant” surveillance court opinions, decisions and orders and summaries of any significant legal interpretations. The 2005 bill that Obama co-sponsored would have released those opinions to the public, allowing redactions for sensitive national security information.

Before Edward Snowden’s disclosures, the Obama Justice Department had fought Freedom of Information Act lawsuits seeking surveillance court opinions. On July 31, the Director of National Intelligence released a heavily redacted version of the FISA court’s “primary order” compelling telecoms to turn over metadata.

In response to a request from Yahoo, the government also says it is going to declassify court documents showing how Yahoo challenged a government directive to turn over user data. The Director of National Intelligence is still reviewing if there are other surveillance court opinions and other significant documents that may be released. Meanwhile, there are several bills in Congress that would compel the government to release secret surveillance court opinions.

FAQ: What You Need to Know About the NSA’s Surveillance Programs

This story, written by Jonathan Stray for ProPublica, was originally published on June 27, 2013.

There have been a lot of news stories about NSA surveillance programs following the leaks of secret documents by Edward Snowden. But it seems the more we read, the less clear things are. We’ve put together a detailed snapshot of what’s known and what’s been reported where.

What information does the NSA collect and how?

We don’t know all of the different types of information the NSA collects, but several secret collection programs have been revealed:

A record of most calls made in the U.S., including the telephone number of the phones making and receiving the call, and how long the call lasted. This information is known as “metadata” and doesn’t include a recording of the actual call (but see below). This program was revealed through a leaked secret court order instructing Verizon to turn over all such information on a daily basis. Other phone companies, including AT&T and Sprint, also reportedly give their records to the NSA on a continual basis. All together, this is several billion calls per day.

Email, Facebook posts and instant messages for an unknown number of people, via PRISM, which involves the cooperation of at least nine different technology companies. Google, Facebook, Yahoo and others have denied that the NSA has “direct access” to their servers, saying they only release user information in response to a court order. Facebook has revealed that, in the last six months of 2012, they handed over the private data of between 18,000 and 19,000 users to law enforcement of all types — including local police and federal agencies, such as the FBI, Federal Marshals and the NSA.

Massive amounts of raw Internet traffic The NSA intercepts huge amounts of raw data, and stores billions of communication records per day in its databases. Using the NSA’s XKEYSCORE software, analysts can see “nearly everything a user does on the Internet” including emails, social media posts, web sites you visit, addresses typed into Google Maps, files sent, and more. Currently the NSA is only authorized to intercept Internet communications with at least one end outside the U.S., though the domestic collection program used to be broader. But because there is no fully reliable automatic way to separate domestic from international communications, this program also captures some amount of U.S. citizens’ purely domestic Internet activity, such as emails, social media posts, instant messages, the sites you visit and online purchases you make.

The contents of an unknown number of phone calls There have been several reports that the NSA records the audio contents of some phone calls and a leaked document confirms this. This reportedly happens “on a much smaller scale” than the programs above, after analysts select specific people as “targets.” Calls to or from U.S. phone numbers can be recorded, as long as the other end is outside the U.S. or one of the callers is involved in “international terrorism“. There does not seem to be any public information about the collection of text messages, which would be much more practical to collect in bulk because of their smaller size.

The NSA has been prohibited from recording domestic communications since the passage of the Foreign Intelligence Surveillance Act but at least two of these programs — phone records collection and Internet cable taps — involve huge volumes of Americans’ data.

Does the NSA record everything about everyone, all the time?

The NSA records as much information as it can, subject to technical limitations (there’s a lot of data) and legal constraints. This currently includes the metadata for nearly all telephone calls made in the U.S. (but not their content) and massive amounts of Internet traffic with at least one end outside the U.S. It’s not clear exactly how many cables have been tapped, though we know of at least one inside the U.S., a secret report about the program by the NSA’s Inspector General mentions multiple cables, and the volume of intercepted information is so large that it was processed at 150 sites around the world as of 2008. We also know that Britain’s GCHQ, which shares some intelligence with the NSA, had tapped over 200 cables as of 2012, belonging to seven different telecommunications companies.

Until 2011 the NSA also operated a domestic Internet metadata program which collected mass records of who emailed who even if both parties were inside the U.S.

Because it is not always possible to separate domestic from foreign communications by automatic means, the NSA still captures some amount of purely domestic information, and it is allowed to do so by the Foreign Intelligence Surveillance Court.

The collected information covers “nearly everything a user does on the Internet,” according to a presentation on the XKEYSCORE system. The slides specifically mention emails, Facebook chats, websites visited, Google Maps searches, transmitted files, photographs, and documents of different kinds. It’s also possible to search for people based on where they are connecting from, the language they use, or their use of privacy technologies such as VPNs and encryption, according to the slides.

This is a massive amount of data. The full contents of intercepted Internet traffic can only be stored for up to a few days, depending on the collection site, while the associated “metadata” (who communicated with whom online) is stored up to 30 days. Telephone metadata is smaller and is stored for five years. NSA analysts can move specific data to more permanent databases when they become relevant to an investigation.

The NSA also collects narrower and more detailed information on specific people, such as the actual audio of phone calls and the entire content of email accounts. NSA analysts can submit a request to obtain these types of more detailed information about specific people.

Watching a specific person like this is called “targeting” by the Foreign Intelligence Surveillance Act, the law which authorizes this type of individual surveillance. The NSA is allowed to record the conversations of non-Americans without a specific warrant for each person monitored, if at least one end of the conversation is outside of the U.S. It is also allowed to record the communications of Americans if they are outside the U.S. and the NSA first gets a warrant for each case. It’s not known exactly how many people the NSA is currently targeting, but according to a leaked report the NSA intercepted content from 37,664 telephone numbers and email addresses from October 2001 to January 2007. Of these, 8% were domestic: 2,612 U.S. phone numbers and 406 U.S. email addresses.

How the NSA actually gets the data depends on the type of information requested. If the analyst wants someone’s private emails or social media posts, the NSA must request that specific data from companies such as Google and Facebook. Some technology companies (we don’t know which ones) have FBI monitoring equipment installed “on the premises” and the NSA gets the information via the FBI’s Data Intercept Technology Unit. The NSA also has the capability to monitor calls made over the Internet (such as Skype calls) and instant messaging chats as they happen.

For information that is already flowing through Internet cables that the NSA is monitoring, or the audio of phone calls, a targeting request instructs automatic systems to watch for the communications of a specific person and save them.

It’s important to note that the NSA probably has information about you even if you aren’t on this target list. If you have previously communicated with someone who has been targeted, then the NSA already has the content of any emails, instant messages, phone calls, etc. you exchanged with the targeted person. Also, your data is likely in bulk records such as phone metadata and Internet traffic recordings. This is what makes these programs “mass surveillance,” as opposed to traditional wiretaps, which are authorized by individual, specific court orders.

What does phone call metadata information reveal, if it doesn’t include the content of the calls?

Even without the content of all your conversations and text messages, so-called “metadata” can reveal a tremendous amount about you. If they have your metadata, the NSA would have a record of your entire address book, or at least every person you’ve called in the last several years. They can guess who you are close to by how often you call someone, and when. By correlating the information from multiple people, they can do sophisticated “network analysis” of communities of many different kinds, personal or professional — or criminal.

Phone company call records reveal where you were at the time that a call was made, because they include the identifier of the radio tower that transmitted the call to you. The government has repeatedly denied that it collects this information, but former NSA employee Thomas Drake said they do. For a sense of just how powerful location data can be, see this visualization following a German politician everywhere he goes for months, based on his cellphone’s location information.

Even without location data, records of who communicated with whom can be used to discover the structure of groups planning terrorism. Starting from a known “target” (see above), analysts typically reconstruct the social network “two or three hops” out, examining all friends-of-friends, or even friends-of-friends-of-friends, in the search for new targets. This means potentially thousands or millions of people might be examined when investigating a single target.

Metadata is a sensitive topic because there is great potential for abuse. While no one has claimed the NSA is doing this, it would be possible to use metadata to algorithmically identify, with some accuracy, members of other types of groups like the Tea Party or Occupy Wall Street, gun owners, undocumented immigrants, etc. An expert in network analysis could start with all of the calls made from the time and place of a protest, and trace the networks of associations out from there.

Phone metadata is also not “anonymous” in any real sense. The NSA already maintains a database of the phone numbers of all Americans for use in determining whether someone is a “U.S. person” (see below), and there are several commercial number-to-name services in any case. Phone records become even more powerful when they are correlated with other types of data, such as social media posts, local police records and credit card purchase information, a process known as intelligence fusion.

Does the NSA need an individualized warrant to listen to my calls or look at my emails?

It’s complicated, but not in all cases. Leaked court orders set out the “minimization” procedures that govern what the NSA can do with the domestic information it has intercepted. The NSA is allowed to store this domestic information because of the technical difficulties in separating foreign from domestic communications when large amounts of data are being captured.

Another document shows that individual intelligence analysts make the decision to look at previously collected bulk information. They must document their request, but only need approval from their “shift coordinator.” If the analyst later discovers that they are looking at the communications of a U.S. person, they must destroy the data.

However, if the intercepted information is “reasonably believed to contain evidence of a crime” then the NSA is allowed to turn it over to federal law enforcement. Unless there are other (still secret) restrictions on how the NSA can use this data this means the police might end up with your private communications without ever having to get approval from a judge, effectively circumventing the whole notion of probable cause.

This is significant because thousands or millions of people might fall into the extended social network of a single known target, but it is not always possible to determine whether someone is a U.S. person before looking at their data. For example, it’s not usually possible to tell just from someone’s email address, which is why the NSA maintains a database of known U.S. email addresses and phone numbers. Internal documents state that analysts need only “51% confidence” that someone is a non-U.S. person before looking at their data, and if the NSA does not have “specific information” about someone, that person is “presumed to be a non-United States person.”

Also, the NSA is allowed to provide any of its recorded information to the FBI, if the FBI specifically asks for it.

Is all of this legal?

Yes, assuming the NSA adheres to the restrictions set out in recently leaked court orders. By definition, the Foreign Intelligence Surveillance Court decides what it is legal for the NSA to do. But this level of domestic surveillance wasn’t always legal, and the NSA’s domestic surveillance program has been found to violate legal standards on more than one occasion.

The NSA was gradually granted the authority to collect domestic information on a massive scale through a series of legislative changes and court decisions over the decade following September 11, 2001. See this timeline of loosening laws. The Director of National Intelligence says that authority for PRISM programs comes from section 702 of the Foreign Intelligence Surveillance Act and the Verizon metadata collection order cites section 215 of the Patriot Act. The author of the Patriot Act disagrees that the act justifies the Verizon metadata collection program.

The NSA’s broad data collection programs were originally authorized by President Bush on October 4, 2001. The program operated that way for several years, but in March 2004 a Justice Department review declared the bulk Internet metadata program was illegal. President Bush signed an order re-authorizing it anyway. In response, several top Justice Department officials threatened to resign, including acting Attorney General James Comey and FBI director Robert Mueller. Bush backed down, and the Internet metadata program was suspended for several months. By 2007, all aspects of the program were re-authorized by court orders from the Foreign Intelligence Surveillance Court.

In 2009, the Justice Department acknowledged that the NSA had collected emails and phone calls of Americans in a way that exceeded legal limitations.

In October 2011, the Foreign Intelligence Surveillance Court ruled that the NSA violated the Fourth Amendment at least once. The Justice Department has said that this ruling must remain secret, but we know it concerned some aspect of the “minimization” rules the govern what the NSA can do with domestic communications. The Foreign Intelligence Surveillance Court recently decided that this ruling can be released, but Justice Department has not yet done so.

Civil liberties groups including the EFF and the ACLU dispute the constitutionality of these programs and have filed lawsuits to challenge them.

How long can the NSA keep information on Americans?

The NSA can generally keep intercepted domestic communications for up to five years. It can keep them indefinitely under certain circumstances, such as when the communication contains evidence of a crime or when it’s “foreign intelligence information,” a broad legal term that includes anything relevant to “the conduct of the foreign affairs of the United States.”

The NSA can also keep encrypted communications indefinitely. That includes any information sent to or from a secure web site, that is, a site with a URL starting with “https”.

Does the NSA do anything to protect Americans’ privacy?

Yes. First, the NSA is only allowed to intercept communications if at least one end of the conversation is outside of the U.S. — though it doesn’t have to distinguish domestic from foreign communication until the “earliest practicable point” which allows the NSA to record bulk information from Internet cables and sort it out later. When the NSA discovers that previously intercepted information belongs to an American, it must usually destroy that information. Because this determination cannot always be made by computer, this sometimes happens only after a human analyst has already looked at it.

The NSA also must apply certain safeguards. For example, the NSA must withhold the names of U.S. persons who are not relevant to ongoing investigations when they distribute information — unless that person’s communications contain evidence of a crime or are relevant to a range of national security and foreign intelligence concerns.

Also, analysts must document why they believe someone is outside of the U.S. when they ask for addition information to be collected on that person. An unknown number of these cases are audited internally. If the NSA makes a mistake and discovers that it has targeted someone inside the U.S., it has five days to submit a report to the Department of Justice and other authorities.

What if I’m not an American?

All bets are off. There do not appear to be any legal restrictions on what the NSA can do with the communications of non-U.S. persons. Since a substantial fraction of the world’s Internet data passes through the United States, or its allies, the U.S. has the ability to observe and record the communications of much of the world’s population. The European Union has already complained to the U.S. Attorney General.

The U.S. is hardly the only country doing mass surveillance, though its program is very large. GCHQ, which is the British counterpart to the NSA, has a similar surveillance program and shares data with the NSA. Many countries now have some sort of mass Internet surveillance now in place. Although passive surveillance is often hard to detect, more aggressive governments use intercepted information to intimidate or control their citizens, including Syria, Iran, Egypt, Bahrain and China. Much of the required equipment is sold to these governments by American companies.