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 – the report is silent on how – 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.
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