13 March 1998
Source: The Puzzle Palace: A Report on America's Most Secret Agency, James Bamford, Penguin Books, 1983. ISBN 0 14 00.6748 5. Pages 458-477.
Thanks to James Bamford and Penguin Books
"THE PLO SENDS a man into New York, a terrorist, to plant bombs . . . An American organization is backing a revolution Haiti. . . A congressman is demanding money from a foreign government and you discover that from their communications . . . What do you do with it?" For fifteen years, G Group Chief Frank Raven struggled with such conundrums. Where to draw the line between foreign and domestic targets, legal and illegal interception, and foreign intelligence or law enforcement purposes?
"There was a big internal struggle within NSA on the question as to whether or not we should work domestic targets," Raven recalled, "and this is not an easy question. There is no such thing--and this is something I brought up before the Church Committee and they were screaming on it--you cannot divide your problems neatly and cleanly into internal U.S. and external U.S.... You have intelligence which is entirely foreign and yoU have intelligence which is entirely domestic. But then you have the third category which no one will recognize, which is intelligence which moves back and forth between them."
In this large gray area, where domestic and foreign intelligence overlap, one of the most sensitive issues involves the handling of communications of an "innocent" American--one neither targeted nor watch-listed--that are scooped into the vacuum cleaner. This happens with considerable frequency because of the way in which names and phrases are jam-packed into the computers. Even though NSA's specialized supercomputers have enormous storage capacities, the tremendous number of targets forces the Agency to squeeze the watch lists together as tightly as possible. Thus, according to Raven, programmers would simply reduce Malcolm X to the last two letters in his first name (lm) followed by a space and then the letter X. Then any time an intercepted data communication containing that particular combination of letters and spacing (lm X) streamed past the computer's reading head, it would automatically be kicked out for further analysis.
Part of the reason that the computers are swamped with watch list submissions is that many items require numerous entries. When searching for derogatory references to President Richard M. Nixon, for example, technicians would have to program a variety of possible key words, such as "Tricky Dicky." This, according to the former G Group chief, would be converted to "ky----ky."
Should this selection process still produce a considerable amount of traffic, the data could then undergo "secondary testing," such as the addition of the words "New York," to reduce the volume. Nevertheless, after all the narrowing-down, if the total number of intercepts relating to innocent Americans was reduced to only 10 percent, the final amount would still be staggering. From Operation Shamrock alone, the total number of messages selected for final analysis came to approximately 150,000 per month. This is readily understandable when one considers that there are about twenty-four million international telegrams and fifty million telex messages that enter, leave, and transit the United States annually, plus millions of additional messages transmitted on leased lines. Added to this are billions of words and numbers entering and leaving the country each year over computer terminals.
And then there is voice. Although computers have not, apparently, advanced to the stage where they can economically pick out words and phrases from spoken communications, they can very easily be programmed to start the tape recorders rolling when they "recognize" targeted multi-frequency address codes--the beedle-de-beep sounds one hears after dialing a long distance call--which indicate who is calling whom. Once these calls are recorded, analysts could listen for watch-listed information contained on their scan-guides.
In the past, NSA has had an internal policy of not releasing to other agencies the names of innocent American citizens or corporations incidentally picked up in their electronic dragnet. Thus, if the Belgian ambassador wires to his Foreign Office a bit of political gossip picked up from an American at a Washington cocktail party, the NSA would most likely pass the gossip on to the State Department but delete the name of the original source.
The reason for the NSA's policy was, in part, the fact that its mission was limited to foreign intelligence. But it was also based on the well-reasoned fear that if it gave the consumer the name of the American, that agency would then turn around and act on the information--and possibly blow the whole intercept operation. For example, if the State Department were advised that the source of the gossip was the department's chief of protocol it would be highly likely that the official would be confronted with the sensitive information, and the possibility of an ensuing leak would be greatly increased.
But the most difficult problems were those concerning innocent Americans involved in illegal activities. "You get a guy who calls from phone booths in Grand Central Station," recalled Frank Raven, "and he's moving around Grand Central Station--it isn't always the same phone booth--and he's talking to people in South America; he's making the arrangements for shipping in drugs." Under such circumstances, said Raven, "you can [report] till you're blue in the face about the arrangements that are being made outside of the U.S. territory," but when it came to identifying the possible American, all NSA could report was that "an unspecified drug dealer in Grand Central Station is ordering drugs from Venezuela . . . You tell the foreign intelligence which is contained in the communication but you do not in any way indicate the precise identity of the possible American citizen who's involved."
Understandably, many of NSA's consumers found the non-disclosure policy frustrating and sometimes irrational. In fact, in one case where the Agency refused to give out the name of an American business firm, the FBI fought the action all the way to the director of Central Intelligence--and lost.
On the other hand, drug dealers were not the only ones who unwittingly found their way into NSA's magnetic-tape library. Also captured were the hungry demands of wayward congressmen insisting on bribes from foreign governments, a circumstance that, according to Raven, placed NSA "on a first-class spot!" He pointed out that "you don't get this on the Communist problems . . . but you get it all the time--as a matter of fact, it's a daily episode to the chief of G Group." The way out of the spot, said Raven, was simply to do nothing. The message was buried away in a file and considered domestic intelligence.
Another NSA official caught up in the no-win situation of handling evidence of congressional wrongdoing was, apparently, Juanita M. Moody, the consumer staff liaison officer in Operations who was responsible for the distribution of all SIGINT throughout government. In 1977 she was reportedly called from retirement to testify secretly before the House Ethics Committee concerning her knowledge of intercepted cable traffic to and from the South Korean embassy, which may have contained evidence of congressmen taking money from the South Korean government in exchange for influence.
Because South Korea came under B Group rather than G Group, Frank Raven was not involved in the "Koreagate" investigation. Nevertheless, there was little doubt in his mind as to how the possibly incriminating traffic was handled: "The fellow who decrypted them, the linguist who read them, would read them and file them."
One of the oldest, and probably most strictly followed, internal NSA guidelines was the prohibition against entirely domestic eavesdropping--where both terminals were located within the United States. It was possibly the rule that caused the most consternation, since it eliminated the possibility of collecting the communications between the foreign embassies in Washington and their consulates and UN missions in New York. "If the Russian [consulate] in New York calls the Russian embassy in Washington, that's domestic intelligence," complained Frank Raven. "If it's going to South America, it's all right . . but if it's going between New York and Washington, you can't touch it."
For twenty-five years the NSA struggled in total secrecy over the questions of foreign versus domestic intelligence collection. Its power to eavesdrop, the Agency had always insisted, came under no earthly laws but rather emanated from some celestial "inherent presidential authority" reposed in the chief executive by the Constitution. But on March 23, 1976, in the wake of Watergate and the far-ranging intelligence abuses uncovered by the Church and Pike Committees, President Ford gave his blessings to a Senate bill that would have eliminated much of that "inherent authority" and, for the first time, required the NSA to submit to judicial review before initiating certain surveillances.
Known as the Foreign Intelligence Surveillance Act (FISA), the bill was introduced by Senator Edward M. Kennedy following months of closed-door negotiations with the Justice Department. For Kennedy, it was his fourth attempt in as many years to get legislation regulating warrantless eavesdropping--and the first time he had received administration support. Nevertheless, despite favorable endorsements by both the Senate Judiciary Committee and the Senate Intelligence Committee, the legislation was lost because the session ended before the full Senate could act.
There was a second unsuccessful attempt to get the bill passed in 1977, but the FISA was finally signed into law by President Jimmy Carter, who also backed the bill, on October 25, 1978.
For decades the technology of espionage had greatly outpaced the law. Now, with the FISA, the lawmakers were attempting to catch up. The statute would at last bring under the rule of law an area of surveillance that had heretofore been considered far too sensitive even to discuss with another branch of government: electronic eavesdropping within the United States on foreign embassies, diplomats, and agents of foreign powers.
The key to the legislation could have been dreamed up by Franz Kafka: the establishment of a supersecret federal court. Sealed away behind a cipher-locked door in a windowless room on the top floor of the Justice Department building, the Foreign Intelligence Surveillance Court is most certainly the strangest creation in the history of the federal Judiciary. Its establishment was the product of compromises between legislators who wanted the NSA and FBI, the only agencies affected by the FISA, to follow the standard procedure of obtaining a court order required in criminal investigations, and legislators who felt the agencies should have no regulation whatsoever in their foreign intelligence surveillances.
To settle the problem of where to draw the line between foreign and domestic intelligence, the legislation established a complex authorization procedure and added a strict "minimization" requirement to prohibit the use and distribution of communications involving Americans inadvertently picked up during the intercept operations.
A typical situation involving the NSA might originate with a CIA requirement to begin monitoring the Greek Tourist Information Offices in New York, Washington, and San Francisco as a result of a number of pro-Soviet and anti-American actions taken by the newly elected Greek Prime Minister, Andreas Papandreou.
After first being filtered through the intelligence community's National Intelligence Tasking Center and being placed on the IGCP, the CIA requirement would then go to NSA's consumer staff liaison officer, who would pass it on to the chief of G Group, the organization in Operations responsible for coverage of Greece. The chief of G Group would meet with the chief of W Group, responsible for intercept operations, and determine that coverage of the tourist offices would be regulated by the FISA because of the necessity to intercept wholly domestic communications links, such as those between New York, Washington, and San Francisco.
The intercept proposal would gradually work its way up the chain of command to the deputy director for Operations, the deputy director of NSA, and then to the general counsel who would have to determine whether the target of the surveillance was either a foreign power or an agent of a foreign power, and also that the place or facilities to be monitored were in fact being used by the foreign target. This requirement constitutes one of the most important parts of the FISA law and was included to prevent the watch-listing of American citizens, which took place during the 1960s and 1970s.
The Greek Tourist Offices would qualify under the FISA as foreign powers," since they would be official entities "directed and controlled by a foreign government." At the same time, the employees of the tourist offices would also become legitimate NSA targets as long as they were neither American citizens nor resident aliens, although even both of those groups would qualify as targets if they engaged in "clandestine" activities involving criminal acts on behalf of the Greek government.
Next, the general counsel would have to ensure that the necessary "minimization" procedures were adequate to eliminate as much as possible, the chances of interception, retention, and dissemination of information concerning United States citizens which might occur, say, when an American citizen simply called one of the offices to find out the requirements for a visa. The FISA prohibits the Agency from keeping or distributing such information unless it can be determined that the information concerning the American relates to the ability of the United States to protect itself against a foreign attack or sabotage, terrorism, or clandestine activities by a foreign agent.
However, if the American's telephone call or message falls into the vague, broad areas of providing for the "national security, defense, or foreign policy of the United States," then the NSA would be authorized to pass along the communication, with the identity of the American eliminated, unless the identity would be necessary for the consumer to understand the importance of the communication.
A final exception authorized the Agency to distribute the communication if it relates to criminal activity, thus clearing up the conflict of how to handle such matters as the inadvertent picking up of evidence of bribe-taking congressmen.
From the NSA general counsel, the surveillance application goes to the NSA director, the Secretary of Defense, and then to the Justice Department's highly secretive Office of Intelligence Policy and Review, where staff attorneys put the final touches on the documents and submit them to the Attorney General for final approval. If it is granted, the attorneys, accompanied by an official from NSA's Office of SIGINT Operations, enter the tightly guarded Foreign Intelligence Surveillance Court and argue the merits of the case across a long table from one of the specially cleared FISA judges.
Presiding over the Star Chamber of the federal Judiciary is George L. Hart, Jr., a federal district judge in Washington, D.C. He and six other federal judges * from various parts of the country were hand-picked by Supreme Court Chief Justice Warren E. Burger to serve on the surveillance court for staggered terms, the first terms ranging from one to seven years. Trading in their robes and gavels for cloaks and daggers, they come to Washington on a rotating basis and hold court in a secure conference room at the main Justice Department building.
* As of January 1982, they were Albert V. Bryan, Jr. son of the judge who had heard the case of Joseph Sidney Petersen, Jr. (Eastern District of Virginia), Frederick S. Lacey (District of New Jersey), Lawrence W. Pierce (Southern District of New York), Frank J. McGarr (Northern District of Illinois), William C . O'Kelley (Northern District of Georgia), and Frederick A. Daugherty (Western District of Oklahoma).
Almost unheard of outside the inner sanctum of the intelligence establishment, the court is like no other. It sits in secret session, holds no adversary hearings, and issues almost no public opinions or reports. It is listed in neither the Government Organizational Manual nor the United States Court Directory and has even tried to keep its precise location a secret. "On its face," said one legal authority familiar with the court, "it is an affront to the traditional American concept of justice."
Inside the court, the judge would have to determine whether there was "probable cause" to believe that the Greek Tourist Offices are "foreign powers" and that the employees were "agents of foreign powers." Also, he would have to determine that the minimization procedures conformed to the statute and, if an American was the target, that the government's certification that the surveillance meets FISA terms is not "clearly erroneous." If these requirements are met, the judge must issue a warrant authorizing the intercept. There are no provisions for the judge to "look behind" the application to determine the necessity or propriety of the surveillance. As long as he finds that the target is "foreign" and that the proper application procedures have been followed, he has no choice but to approve it.
Under such circumstances, it is little wonder that the federal government has never lost a case before the court. In the court's first fifteen months, ending in December 1980, it approved all 518 applications, including one order that granted even broader authority than that sought by the Justice Department. The court has continued to maintain its perfect record through at least August 1981--with one exception. Shortly after the creation of the court, Justice Department lawyers began seeking warrants from the Judges for authorization to conduct surreptitious entries--black-bag jobs--into various "nonresidential premises under the direction and control of a foreign power." When the Reagan administration came into office, however, the Justice Department argued that the power for foreign intelligence black-bag jobs was vested not in the court, but in the inherent authority of the President. Presiding Judge Hart, in the court's only published opinion, agreed. Thus, in rejecting the administration's application for a new surreptitious entry, he was in fact going along with the argument of the Justice Department. As a result the rejected break-in and all subsequent surreptitious entries need no court authorization, only presidential approval.
Given the fact that the top secret court has never said no to the government, it would be difficult to conclude that it has become anything other than a rubber stamp. How much of a rubber stamp may be judged by examining the way in which foreign intelligence surveillances were approved prior to the establishment of the court. Then the review was done by an interagency panel made up of the Secretaries of Defense and State and chaired by the director of Central Intelligence. The standards and methods of presenting the surveillance applications to the panel were substantially similar to the way they are handled by the court--but there was one key difference. Speaking of his experience with the review group, DCI Stansfield Turner once told the Senate Intelligence Committee, "I would point out there has been no meeting of the panel at which all of the requests before it were approved." It would appear that the surveillance requests were examined far more critically before the arrival of the court than since its creation.
Despite the court's tremendous emphasis on secrecy and security, there are several areas forbidden even from its review. One is the NSA's monitoring of telex and other data communications entering and leaving foreign embassies and other foreign-controlled properties, and the other is the monitoring of the dedicated, or leased, communications circuits used exclusively between foreign establishments in the United States. Thus, NSA would not have to seek an FISA warrant to intercept a radio or leased microwave circuit between the Soviet embassy in Washington and its UN mission in New York.
Because these two forms of eavesdropping, the House Intelligence Committee believed, included "some of the most sensitive surveillances which this Government conducts in the United States," the Congress excluded them from the jurisdiction of the spy court and placed the power to approve them exclusively in the hands of the Attorney General.
Even more disturbing than the apparent evolution of the surveillance court into an Executive Branch rubber stamp are the gaping holes and clever wording of the FISA statute, which nearly void it of usefulness. Such language, intentional as well as unintentional, permits the NSA to rummage at will through the nation's international telecommunications network and to target or watch-list any American who happens to step foot out of the country.
Once an American leaves the United States, he or she is stripped of any protection from the NSA. The Agency is permitted to target, record, transcribe, and disseminate any and all of his or her communications the same way it would the communications of the Red Brigades. There is no statutory requirement to seek approval from the surveillance court, the Attorney General, or any other authority.
Within the United States, the NSA is still free to pull into its massive vacuum cleaner every telephone call and message entering, leaving, or transiting the country, as long as it is done by microwave interception. And the Agency can program its high-speed computers and 22,000-line-per-minute printers to kick out every telegram or telex containing the word oil or the word Democrat while voice analysts, scan-guides in hand, listen attentively to every phone call between Washington and London, recording for later dissemination those containing the targeted subjects.
The major advantage of the FISA statute is that NSA is no longer permitted to target or watch-list Americans by name without an FISA warrant, even in international communications--as long as the person happens to be located on U.S. soil. Yet even this welcome reform appears to be undermined by what may be the Agency's most sinister loophole.
"Electronic surveillance," the statute reads, means "the acquisition by an electronic, mechanical, or other surveillance device" of the approved targets. But nowhere does the statute define the meaning of the key word acquisition. Rather, it is left to NSA to define--which it does in a top secret document. "Acquisition," according to the document, "means the interception by the National Security Agency through electronic means of a communication to which it is not an intended party and the processing of the contents of that communication into an intelligible form intended for human inspection."
By carefully inserting the words "by the National Security Agency," the Agency has skillfully excluded from the coverage of the FISA statute as well as the surveillance court all interceptions received from the British GCHQ or any other non-NSA source. Thus it is possible for GCHQ to monitor the necessary domestic or foreign circuits of interest and pass them on to NSA through the UKUSA Agreement. Once they were received, NSA could process the communications through its own computers and analysts, targeting and watch-listing Americans with impunity, since the action would not be covered under the FISA statute or any other law.
That such action is far from improbable can be seen by the way NSA processed its domestic civil disturbance watch lists. According to the still classified Justice Department investigation into illegal NSA surveillance, "MINARET intelligence, except one category of international voice communications involving narcotics, was obtained incidentally in the course of NSA's interception of aural and non-aural (e.g., telex) international communications and the receipt of GCHQ-acquired telex and ILC [International Licensed Carrier] cable traffic (SHAMROCK)." [Emphasis supplied.]
Likewise, it is important to recall former Deputy Director Tordella's comment when referring to the CIA's withdrawal of support from NSA's drug monitoring: "It was in their General Counsel's opinion beyond CIA's charter to monitor radio communications on U.S. soil and I was told that if they could move a group of Cubans up to Canada it would be quite all right, but they could not do it in the United States."
Another worrisome aspect of the NSA definition is the inclusion of the words "through electronic means." This may be interpreted as excluding from the FISA statute the receipt of hand-delivered magnetic tapes from the communications companies, as was done in Operation Shamrock. In fact, the Church Committee in its final recommendations, from which much of the FISA statute is drawn, included specific language to prohibit just such transfers: "NSA should not request from any commercial carrier any communication which it could not otherwise obtain pursuant to these recommendations."
No such exclusion, however, was ever included in the final FISA statute. Instead, the statute now calls for what one constitutional law expert has termed "compulsory spy service," requiring "communications common carriers, their officers, employees, and agents . . . to provide information, facilities, or technical assistance to persons authorized by law to intercept wire or oral communications or to conduct electronic surveillance" and also ordering them to protect the secrecy of the operations.
Then there is the last, and possibly most intriguing, part of the definition, which stipulates that NSA has not "acquired" anything until the communication has been processed "into an intelligible form intended for human inspection." NSA is therefore free to intercept all communications, domestic as well as foreign, without ever coming under the law. Only when it selects the "contents" of a particular communication for further "processing" does the FISA take effect.
The same classified document that defines "acquisition" also attempts to resolve another thorny question constantly faced by intercept operators: "If you're intercepting a link," Frank Raven recalled, "let's say from Paris to Stockholm, and you get a message on there--how do you know whether or not the guy is an American citizen? And believe me, the fact that he's got an Anglo name does not make him an American citizen."
The answer was to establish a policy whereby, according to the NSA document,
a person known to be currently in the United States will be treated as a United States person unless that person is positively identified as an alien who has not been admitted for permanent residence or unless the nature of the person's communications or other indicia in the contents or circumstances of such communications give rise to a reasonable belief that such person is not a United States person.
On the other hand, a person "known to be currently outside the United States, or whose location is not known, will not be treated as a United States person" unless there is positive identification or it can be reasonably determined from the conversation or other factors. Therefore, according to Raven, a person would be presumed to be an American citizen simply because of "the fact that he called from Grand Central Station--you just say 'a possible American citizen.' "
On January 24, 1978, President Jimmy Carter issued an executive order imposing detailed restrictions on the nation's intelligence community. The order was designed to prevent the long list of abuses of the 1960s and 1970s. But four years later President Ronald Reagan scrapped the Carter order and broadened considerably the power of the spy agencies to operate domestically.
First drafted by a working group chaired by CIA (and former NSA) general counsel Daniel B. Silver, a leaked copy of the new order created a storm of protest in March 1981, forcing former deputy director (and former DIRNSA) Admiral Bobby R. Inman to plead ignorance of the plan and publicly disavow the document. Nevertheless after two more unsuccessful tries, a modified order was finally signed into law on December 4, 1981.
Although the order primarily expanded the activities of the CIA, a number of sections related to the NSA, as well. Under "Conduct of Intelligence Activities," the order formally placed the power to authorize domestic black-bag jobs in the hands of the Attorney General, provided he found "probable cause" to believe that the entry would be directed against a "foreign power or an agent of a foreign power."
The Reagan order also cleared up a long-standing question: whether the NSA has the authority to aid federal and state law enforcement agencies in cryptanalysis not related to signals intelligence This might be an FBI case involving a coded note passed between two organized crime suspects. To handle such cases, the FBI has long had its own secretive Cryptanalytical and Translation Section, a part of the Technical Evaluation Unit of the FBI Laboratory. For many years the FBI hid the unit in an unmarked, cream-colored building at 215 Pennsylvania Avenue in the southeast section of Washington, a stone's throw from the Capitol.
Hunched over pads of green graph paper, FBI codebreakers spend most of their time attacking "bookie" cryptosystems, in which the betting data--tracks, horses, wagers--are reduced to numbers, and the numbers then enciphered. Hundreds of such systems are broken with little difficulty each year. But every so often in the past a particularly complex system would come up, and the G-men would turn to the Puzzle Palace. The requests would normally be handled very informally; usually a phone call from FBI associate director William C. Sullivan to G Group chief Frank Raven. "The type of message which they brought to us was sometimes quite sophisticated," Raven recalled, "but they did not require major expenditures or even significant expenditures of manpower or equipment . . . We used to give them to our cryptanalysts to take cracks at in their spare time. In short, not on company time take a look at this and see if you can break it, and they would break them over lunch. . . and send then back to the FBI."
The cases sent to G Group ranged from simple bookies to complicated murders. One case involved a massive numbers racket that was centered at the Pentagon. The details of the transactions were enciphered, as were the names of the organizers and players. Once NSA broke the system and the FBI began picking up the individuals, there was a blood bath as the chief numbers runners began taking shots at one another, each believing the other to be the informant.
Not all the cases, however, involved traditional paper-and-pencil ciphers. For months the FBI and postal inspectors were trying to build a conspiracy case against a number of racketeers in various parts of the country, but there was never any communication between them. In fact, there was really only one common denominator--they all mailed their fancy $100 shirts to the same cleaners in Las Vegas. The FBI, believing the shirts to be a secret code, quietly called in the NSA, and analysts in G Group began setting up charts. Everything was logged--the numbers of shirts, the colors, the sizes, the buttons. One person even searched for a hidden pattern in the odors and religiously sniffed each intercepted shirt, dutifully logging the results (presumably from sweet to foul). In the end, the key was determined to be the number of shirts sent each time--and the FBI rounded up the culprits.
As each case was attacked and, with luck, solved, the chances of NSA's involvement being discovered grew appreciably, and by the early 1970s all cooperation had ceased. At one point the Agency was requested to aid in solving a number of cryptic notes left by a mass murderer but the answer remained no.
Under the Reagan executive order, the NSA can now, apparently, be authorized to lend its full cryptanalytic support--analysts as well as computers--to "any department or agency" in the federal government and, "when lives are endangered," even to local police departments.
But it was not the interception of dirty laundry that caused the Church Committee to issue the warning that "NSA's potential to violate the privacy of American citizens is unmatched by any other intelligence agency." It was, instead, a fear similar to that expressed by David Watters, the telecommunications engineer who formerly worked with the CIA's communications research and development branch:
Tons of electronic surveillance equipment at this moment are interconnected within our domestic and international common carrier telecommunications systems. Much more is under contract for installation. Perhaps this equipment is humming away in a semi-quiescent state wherein at present "no citizen is targeted"; simply scanned. . . How soon will it be, however, before a punched card will quietly be dropped into the machine, a card having your telephone number, my telephone number, or the number of one of our friends to whom we will be speaking?
In the thirty years since Harry Truman issued NSA's birth certificate, the nation has undergone two parallel revolutions. On the one hand, microwaves and satellites have so transformed telecommunications that the wire has become almost obsolete. Today there are nine domestic satellites* in orbit and many more in use for international communications, each with a capacity of thousands of circuits. Each of COMSAT's four domestic COMSTAR satellites alone has eighteen thousand long-distance circuits. Traveling over these invisible pathways are not only millions of telephone conversations, but tens of billions of words and numbers, ranging from simple telegrams and telex messages to complex computer data transfers. Even the mail is now beginning to travel by microwave and satellite.
* Three are operated by Western Union. two by RCA American Communications, Incorporated (RCA Americom), three by COMSAT General Corporation (for the use of the American Telephone & Telegraph Company and GTE Satellite Corporation), and one by Satellite Business Systems (a data communications consortium of COMSAT, IBM, and the Aetna Insurance Company) .
In 1980 the United States Postal Service inaugurated an international electronic mail system known as INTELPOST (international electronic post), whereby anything from letters to blueprints can be transmitted rapidly to an addressee via satellite and cooperating overseas post offices.* Closer to home, the Postal Service in January 1982 launched an enormous domestic electronic mail service. Known as Electronic Computer-Originated Mail, or ECOM, the system permits the post office to sort and transmit electronic, computer-generated messages by satellite to post offices around the country. Each office can then print the contents and automatically fold, seal, and stamp the messages for delivery by letter carrier.
* INTELPOST serves fifty foreign cities. Messages are routed to Canada via terrestrial circuits, then by international satellite to other participating countries.
In 1982 the system is expected to handle twelve million messages, but by 1990 RCA, the major builder of the system, envisions that fully one third of the nation's projected seventy-five billion pieces of letter mail handled by the post office will travel invisibly through the air. So promising is electronic mail that IBM, AT&T, Xerox, and other major technology giants are planning to get in on the act with their own systems.
At the same time, a similar revolution has transformed the nation's intelligence collection system. Where once America's chief source of raw intelligence was the clandestine agent with his or her Minox camera, today that source is the same worldwide blanket of microwave signals and rivers of satellite transmissions that gives us our telephone calls, our remote banking, telegrams and, soon, our mail. Diverted into the Puzzle Palace by the Agency's far-flung network of dish-covered intercept stations, the processed signals yield a rich cargo of economic, political, diplomatic, and military intelligence.
"HUMINT [Human Intelligence] is subject to all of the mental aberrations of the source as well as the interpreter of the source," Lieutenant General Marshall S. Carter once explained. "SIGINT isn't. SIGINT has technical aberrations which give it away almost immediately if it does not have bona fides, if it is not legitimate. A good analyst can tell very, very quickly whether this is an attempt at disinformation, at confusion, from SIGINT. You can't do that from HUMINT; you don't have the bona fides--what are his sources? He may be the source, but what are his sources?"
Having served as deputy director of the CIA and director of the NSA, Carter was one of the very few people to have been intimately associated with both collection systems, and in his opinion SIGINT won by a wavelength. "Photo interpretation," he explained, "can in some cases be misinterpreted by the reader or intentionally confused by the maker in the first place--camouflage, this sort of thing. SIGINT is the one that is immediate, right now. Photo interpretation, yes, to some extent, but you still have to say 'Is that really a fake, have they confused it?' It is better than HUMINT, it is more rapid than HUMINT [but] SIGINT is right now; its bona fides are there the minute you get it."
The major problem with the two revolutions, the tremendous advances in the use of satellite and microwave technology and the enormous growth of SIGINT, is that they have left a void where there should have been a third revolution: the law. Three decades after its creation, the NSA is still without a formal, statutory charter, the first reform called for by the Church Committee. Instead, there is a super hush-hush surveillance court that is virtually impotent; the FISA, which has enough loopholes and exceptions to render it nearly useless; and an executive order that was designed more to protect the intelligence community from the citizens than citizens from the agencies. In addition, because it is an executive order, it can be changed any time at the whim of a President, without so much as a nod toward Congress.
Like an ever-widening sinkhole, NSA's surveillance technology will continue to expand, quietly pulling in more and more communications and gradually eliminating more and more privacy. The task will become increasingly easy throughout the 1980s as voice communications are converted to digital signals, a goal expected to be reached by 1990. When that happens, it will be as easy to run a telephone conversation through a computer, pre-programmed with watch words, as it is now to run through data communications. Of course, by then the ultimate computer may have been developed, one that will be able instantly to transcribe a spoken conversation.
More than fifty years ago, writing a dissenting opinion to a case which held that the Fourth Amendment warrant requirement did not apply to the seizure of conversations by means of wiretapping, Supreme Court Justice Louis D. Brandeis envisioned a day when technology would overtake the law:
Subtler and more far-reaching means of invading privacy have become available to the government. . . [and] the progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. . . Can it be that the Constitution affords no protection against such invasions of individual security? *
* Justice Brandeis answered his own question when he quoted from Boyd v. United States (116 u.s. 616): "It is not the breaking of his doors, and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefensible right of personal security, personal liberty, and private property. (277 U.S. 438, at pages 474-475.)
If there are defenses to such technotyranny, it would appear, at least from past experience, that they will not come from Congress. Rather, they will most likely come from academe and industry in the form of secure cryptographic applications to private and commercial telecommunications equipment. The same technology that is used against free speech can be used to protect it, for without protection the future may be grim. Refering to the NSA's SIGINT technology, Senator Frank Church concluded:
At the same time, that capability at any time could be turned around on the American people and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology . . .
I don't want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there no return.