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July 2009

Volume 22, Number 7
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Big Brother On Folsom Street

By Michael Steinberg
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On May 21, Hugh D'Andrade of the Electronic Frontier Foundation (EFF)—started in 1990 to protect freedom in the electronic and digital worlds—gave an update in San Francisco about his organization's battle against the NSA's (National Security Agency) domestic spying program and AT&T's complicity with the program. The title of D'Andrade's presentation was "Big Brother on Folsom Street: How AT&T Is Helping the NSA Spy on You."

In late 2005, the New York Times broke the story of the Bush administration's warrantless wiretapping of the domestic phone calls and Internet activities of millions of U.S. citizens. Not long after the the New York Times broke the story, Mark Klein, a retired AT&T technician who worked for the company for over 22 years, walked into EFF's San Francisco office with a stack of documents. Klein had taken these documents to the LA Times and New York Times previously, but neither newspaper wanted to deal with them. According to D'Andrade, Klein had "found evidence of a massive spy operation" going on at AT&T's facility at Folsom Street in San Francisco "intercepting everyone's phone calls, emails, web searches, and other Internet activities," and "routing them to the NSA."

Klein also revealed that in 2002-2003, he helped the NSA set up a secret room, known as Room 641-A, or the SG-3 room. A fiber optic "splitter" he worked on enabled the NSA to make a copy of all Internet information coming in and out of this AT&T Internet hub building, "billions of bits of data per second." Klein was called upon to work on a glitch in the fiber optic splitter and, in so doing, he saw documents that made him realize that the secret room was spying on the supposedly private information of millions of Americans.

The Folsom Street facility also routes the information of 16 other Internet providers, according to the EFF website. This interception affects not only AT&T customers, but "other companies sending their stuff through AT&T: everyone's data." In addition, there are "15-20 similar sites, possibly more," according to testimony by Mark Klein and J. Scott Marcus, "a former Senior Advisor for Internet Technology at the FCC." So far, the EFF has identified similar AT&T sites with NSA secret rooms in Seattle, Los Angeles, San Diego, St. Louis, San Jose, and Atlanta.

This NSA domestic spying program has been going on not only with the cooperation (and payment) of AT&T, but also Verizon, Bell South, MCI, and Sprint. Another telecom provider, Qwest, refused to participate. Qwest's CEO has testified that the NSA's offer to join the spy program preceded 9/11.

Mark Klein had a document exposing the NSA's use in the secret room of a Narus 6400 device to carry out high speed "real time" analysis of all the data it intercepted. The Narus technology, Klein testified, "is known to be used particularly by government intelligence agencies to sift through large amounts of data looking for preprogrammed targets." Klein has also stated, "Based on my understanding of the connections and equipment at issue, it appears the NSA is capable of conducting what amounts to the vacuum-cleaning surveillance of all the data crossing the Internet, whether that be emails, web surfing, or any other data."

The NSA is supposed to deal with foreign intelligence. But this was a domestic dragnet, and furthermore the agency had no warrants to carry out these spy operations. According to the Foreign Intelligence Surveillance Act (FISA), the NSA has to obtain a warrant from secret FISA courts before it can begin to carry out a domestic spy operation. D'Andrade reported that between 1979 and 2006 there were almost 23,000 requests for such warrants, of which only a handful were denied. This was a dragnet with no warrants at all.

The Bush administration at first denied the whole story, then later admitted there had been warrantless wiretapping, but only of people in this country who might be connected to Al-Qaeda or other such groups. In early 2006 the EFF filed a lawsuit in federal court, Hepting v. AT&T, with the intent of holding the telecom giant accountable for knowingly participating in the NSA's illegal domestic spying program. The Bush administration tried to have the suit thrown out, contending it "hurt national security to acknowledge the program." The government also argued that the lawsuit would bankrupt AT&T and other telecoms.

But the San Francisco federal judge assigned to the case, Bush senior appointee Vaughn Walker, rejected the government's arguments, saying, "AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal."

Among the government and telecom's next moves were to have immunity declared for AT&T and the other participating companies. A battle raged for two years, with the immunity measure being withdrawn in Congress repeatedly because the votes weren't there to pass it. But the measure (FISA Amendments Act) finally passed in July 2008. D'Andrade reported that "continuing blog coverage" of the issue kept it in the public eye and prevented it from passing sooner.

In September 2008, the EFF filed another federal lawsuit, Jewel v. NSA, seeking to hold the agency responsible for illegal domestic spying. On April 3, 2009, the Obama administration filed a motion to dismiss this suit, also being heard by Judge Vaughn. According to the EFF website, in its motion, the Justice Department "claims…that litigation over the wiretapping program would require the government to disclose privileged 'state secrets'…essentially the same arguments made by the Bush administration three years ago."

EFF Senior Attorney Kevin Bankston said that, "President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties, but with the Obama Justice Department continuing the Bush administration's cover-up of the NSA's dragnet surveillance of millions of Americans and insisting that the much publicized warrantless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like déjà vu all over again."

The San Francisco Chronicle reported that the day after the EFF presentation, Judge Walker "lashed out at the Obama administration" because it has "failed to obey a court's orders" to turn over a "classified document" to the Al-Haramain Islamic Foundation "that claims it was illegally wiretapped." The Chronicle also reported that Judge Walker said, "he may declare the group the winner by default in its lawsuit against the government."

I asked D'Andrade if the massive domestic spy program was still going on at Folsom Street. "As far as we know," he replied, "it is."

Z
Michael Steinberg is a veteran activist and writer. He is the author of Millstone and Me: Sex, Lies and Radiation in Southeastern Connecticut.
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