The unasked questions about the NSA's internal audit

In what might be it's last gasp of investigative national security reporting before the finalizing of Jeff Bezos' CIA sponsored buyout, the Washington Post released an NSA internal audit from 2012 detailing thousands of violations of the FISA and other laws and regulations governing surveillance of Americans. Despite revealing literally thousands of instances of unauthorized collection that violated the law, the report whitewashed at least one seemingly deliberate violation. The Washington Post story failed to catch this that this operator error appears to have happened by design.

Despite its flaws, the report sheds additional light on the ongoing practices of domestic spying and gross violations of privacy by the NSA. In a single 12-month period there were 2776 collection incidents in violation of federal law or executive order. Some involved collecting data on thousands of individuals in the United States. In this case collection is defined the way Director of National Intelligence Clapper defines collection. Collection means reading by a person, not storing in a database.

The report only covers violations occurring at NSA Washington, which covers NSA headquarters and associated facilities. It does not cover NSA operations in other parts of the US, nor shared operations with America's Five Eyes partners. An official who spoke to the Washington Post on condition of anonymity said that if other NSA posts were included, the number “wouldn't double.” It is not clear if the official included Five Eyes partners in his equation, or how close to doubling that number would get if all of the NSA's omitted violations were included. This illegal spying is over and above the legalized spying permitted by the FISA court, which is in the habit of issuing warrants for the data of entire telecommunications companies. The report covers only violations of Executive Order 12333, the FISA act itself and its amendments. The report is silent on overstepping section 215 of the Patriot Act, which concerns the collection of business records, and is the only portion of the domestic spying regime due to be examined by Obama's sham review process announced last week.

One violation proved that restrictions are based on policy not design, as whistle-blower Edward Snowden has previously stated. This “operator error” caused the entire Washington DC area code to be wiretapped for an unknown length of time in 2008. The mistake was allegedly caused when an analyst entered 202, the area code for DC instead of 20, the country code for Egypt into a search field. The Free Press immediately had questions about both the software architecture and the data entry that the Washington Post seemed not to ask.

The analyst was searching for the country code of Egypt, yet this secret search tool scanned area codes. This indicates that the phone metadata is unstructured and the country code is not specifically searched. The software searches the entire phone number instead, which is a more resource intensive search requiring greater computing power. Either the NSA has sloppy programers, which should be impossible, or the search tool is designed to instantly be turned on Americans when policy dictates.

Since the NSA is only supposed harvest foreign data, why does the tool not automatically know the country code? By default, it should exclude numbers dialed from inside the United States. An operator should have to do something extra to look at something that is not leaving America, not the other way around.

The alleged mistake of entering 202 instead of 20 is made more unbelievable by the layout of a keyboard, which has the 0 key and the 2 key touched by the right and left hands respectively. The operator would have to type with left hand then right hand then left hand and then either right hand again to click or hit enter or click with the left hand again on the mouse if said operator were left handed. Go ahead, work that out on your own keyboard right now.

The other alternative would be that the operator was using the number pad. Then they could enter 202 with 2 fingers and then hit enter. This is an unlikely way to enter 202 into a window unless the operator enters phone numbers all day. If the NSA is especially suspicious of foreigners from Muslim countries, and they employ someone to enter phone numbers for countries so often this person uses a number pad, why did it take until 2008 to enter 20 for Egypt?

Further, if the operator had successful entered 20, would have the intended search have harvested Washington DC anyway? Getting all occurrences of “20” in a chunk of data at least 11 characters long? Thus would it have yielded area codes 202,201,203...209,220,320,420... and so forth. Thus Egypt along with DC, Seattle, Northern New Jersey, all of Idaho, a slice of Connecticut, and much more?

Obviously the above should be impossible in any well built and well-tested system owned by the world's premier spy agency. Obviously different syntax would be required to be entered to prevent such wasteful imprecision. Certainly the thousands of computer scientists employed by the NSA would prevent their time being wasted by such trivial mistakes.

The most common way to prevent this with syntax is to require some character in front of 20 to tell the search tool “only give me numbers that start with 20” as opposed to “give me every number that has 20 in it.” Most people that scan through mass amounts of data use the ^ character to say that. If they have some other method it would be similarly one character long. Thus the proper way to type that search for Egypt into the tool is most likely to be ^20. The government employee who typed 202 instead of 20 actually typed 202 instead of ^20. This is even more unlikely to have been a mistake. Any person who enters phone number ranges to search all day knows the difference by heart. This person would never be able to get that job if they did not.

Go ahead and watch your hands type ^20 and hit enter. This is an operator error that no qualified operator can make. If the logical conclusion is the operator was completely incompetent, then the government agency that basically invented computers allowed an incompetent to wiretap the entire capital of the United States.

The other possibility is more chilling. The other possibility is that this operator wiretapped Washington DC on purpose. Thus in 2008, a presidential election year, all of Congress, all of the functionaries of the judiciary, the headquarters of nearly every organ of the federal government, all the business, all the non-profits and lobbyists, and every citizen in Washington, was “inadvertently collected.”

This would have included Barrack Obama either when he was a sitting senator and presidential candidate or when he was president-elect. It would have included then Senator and Presidential candidate McCain. It would also include then Senators Clinton, Biden, Hagel and Kerry. Did somebody in the NSA hear something? Have the Senators and now Cabinet Secretaries inquired about themselves being wiretapped? They have the security clearance to do so.

Did the House and Senate intelligence committees know they had been wiretapped? Did they inform the rest of Congress? Did the NSA wiretap all of Congress and never told Congress? Did then President of the United States George W. Bush know? Did he tell Congress or any part of Congress?

Did President of the Senate Dick Cheney know? How about the Chief Justice of the Supreme Court? The head of the FISA court? The head of the FISA court of appeals?

If Congress did not know it had been bulk wiretapped with the omission of a single keystroke then the Constitution is no longer a functional document. The unitary executive is Imperator, and we have entered a new era.