Is the NSA collecting cell phone location data?

Updated
National Security Agency Director General Keith Alexander (R) receives a note from an aide as he testifies during a hearing before the Senate (Select)...
National Security Agency Director General Keith Alexander (R) receives a note from an aide as he testifies during a hearing before the Senate (Select)...
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Oregon Democratic Senator Ron Wyden, one of the National Security Agency’s most prominent critics, has joked before that when it comes to classified surveillance programs, he’s not allowed to “tap out the truth” to the press “in morse code.”

But he does his best.

Two years ago, Wyden and a few of his colleagues were warning of a “secret Patriot Act,” telling the press that surveillance laws were being interpreted far more broadly than the public knew. During a Senate hearing in March, he asked Director of National Intelligence James Clapper whether the NSA collected “any data at all on millions of Americans.” Clapper said no, and later admitted to being misleading. A few months later, former NSA contractor Edward Snowden leaked a secret court order showing that in fact, the NSA does collect data on Americans. A lot of it.

Here’s the exchange with Clapper from March:

Wyden: What I wanted to see is, if you could give me a yes or no answer to the question, does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not.

Clapper: Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.

That answer turned out not to be true, as everyone learned when the secret court order requesting the call data of all the customers of a Verizon subsidiary was published.

Wyden may have been trying to tap out the truth again Thursday during a Senate intelligence committee hearing—this time, on whether or not the NSA collects Americans’ cell phone geolocation data—that is, information sent to and from your mobile device that can be used to locate it.

Speaking to Gen. Keith Alexander, director of the NSA, Wyden asked, “Director Alexander, Senators Udall, Heinrich and I and about two dozen other senators have asked in the past whether the NSA has ever collected or made any plans to collect Americans’ cell-site information in bulk. What would be your response to that?”

Alexander implied with his answer that Congress would be aware if the NSA had done so. But his response also recalls Wyden’s strained exchange with Clapper back in March:

Wyden: Director Alexander, Senators Udall, Heinrich and I and about two dozen other senators have asked in the past whether the NSA has ever collected or made any plans to collect Americans’ cell-site information in bulk. What would be your response to that?

Alexander: Senator, on July 25, Director Clapper provided a non-classified written response to this question amongst others, as well as a classified supplement with additional detail. Allow me to reaffirm what was stated in that unclassified response. Under section 215, NSA is not receiving cell-site location data and has no current plans to do so. As you know, I indicated to this committee on October 20, 2011, that I would notify Congress of NSA’s intent to obtain cell-site location data prior to any such plans being put in place. As you may also be aware, –

Wyden: General, if I might. I think we’re all familiar with it. That’s not the question I’m asking. Respectfully, I’m asking, has the NSA ever collected or ever made any plans to collect Americans’ cell-site information. That was the question and we, respectfully General, have still not gotten an answer to it. Could you give me an answer to that?

KA: We did. We sent that – as you’re also aware I expressly reaffirmed this commitment to the committee on June 25, 2013. Finally, in the most recent and now declassified opinion renewing this program, the FISA court made clear in footnote number five that notice to the court in a briefing would be required if the government were to seek production of cell-site location information as part of the bulk production of call detail records. Additional details were also provided in the classified supplement to Director Clapper’s July 25th response to this question. So what I don’t want to do, Senator, is put out in an unclassified forum anything that’s classified there so I’m reading to you exactly. So we sent both of these to you. I saw what Director Clapper sent and I agree with it.

RW: General, if you’re responding to my question by not answering it because you think that’s a classified matter that is certainly your right. We will continue to explore that because I believe this is something the American people have a right to know whether the NSA has ever collected or made plans to collect cell-site information.

It seems unlikely that Wyden would be so insistent that “the American people have a right to know” if the NSA has ever collected or planned to collect cell phone geolocation data if he did not believe, based on information he receives as a member of the intelligence committee, that they had. Alexander also does not answer in the negative, he merely says that Congress and the secret foreign intelligence surveillance court would know if they had. Which may be why Wyden is asking the question in the first place.

As a senator, Wyden has the authority to reveal classified information publicly speaking from the Senate floor. But the reason he chooses to “tap out the truth” rather than state it explicitly is that he believes that it’s his responsibility as a member of the intelligence committee not to unilaterally decide what should be secret and what shouldn’t be.

Nevertheless, when it comes to the NSA and cell phone location data, he seems to be sending a message.

Is the NSA collecting cell phone location data?

Updated