The best scene in the new Bourne movie – a chase and a killing at Waterloo Station, with jolting cameras and real-life commuters – comes about because a journalist has failed to see how far the tentacles of American spies can reach. The journalist – we know he’s a fool because he wears a man-bag and writes for the Guardian – has just got back from interviewing a source in Berlin. The first thing he does on landing in the UK is to phone his editor excitedly to say that he has learned of a secret CIA programme codenamed ‘Blackbriar’. Idiot. The moment he speaks the word – it’s a very secret secret – screens light up in a Langley bunker and agents are scrambled; a hitman is sent out to eliminate him. A surprising reaction, you might think, since extraordinary rendition should be an available option, but what you won’t think is surprising is that there is a reaction at all: it doesn’t seem to the viewer beyond the bounds of possibility – indeed it seems, for some reason, likely – that trigger-words spoken on a mobile phone anywhere in the world will set the NSA supercomputers whirring. Don’t say Osama.
We’re safer than we think from the spy agencies, though not for want of their trying. The problem, if you’re the NSA, is purely technical. (Legality is also a concern, but it’s easily dismissed.) Most phone and internet traffic is now carried by high-bandwidth fibre-optic cables owned not by the state but by public companies. This is the price of privatisation. In the days of copper cabling, wiretaps could be put in place simply by placing a piece of equipment close to the wire, since electromagnetic signals travel; when satellites were relied on for long-distance communications intercepts were easily made. Now, though, you need screwdrivers, a soldering-iron and duct tape – and the co-operation of the communications companies. The main AT&T facility in San Francisco at 611 Folsom Street is a dirty grey building with blacked-out windows. (I know this, although I haven’t been to San Francisco, because you can zoom in to see it on the internet thanks to Google’s Street View. You can also see a man in white overalls and a hard hat standing by the entrance, though the technology can’t yet tell you what he’s planning.) Behind one of those windows, on the sixth floor, is Room 641a, also apparently known – by AT&T and the NSA – as SG3. Early in 2003, this new room – entry to which, according to a now retired AT&T engineer called Mark Klein, was permitted only to people with NSA clearance – was wired up to the AT&T systems by means of an optical splitter that, effectively, diverted the entire internet into a black box that analyses and interprets it on site. Documents available on the web show how the wiring is done.
It’s illegal, of course, for government agencies to monitor American communications without a warrant. This is why a class-action lawsuit was brought against AT&T, one of a number of similar suits against the major US telecoms providers. On 15 August the Ninth US Circuit Appeals Court heard the government’s attempt to have the case dismissed. (You can catch the hearing on Google Video.) ‘Was a warrant obtained in this case?’ Judge Pregerson asked. ‘That gets into matters that are protected by state secrets,’ the deputy solicitor general replied. The court wanted access to a secret paper one of the lawyers had accidentally been allowed to see. The government refused point blank. ‘Every ampersand, every comma is top secret?’ Judge Hawkins inquired. ‘This document is totally non-redactable and non-segregable and cannot even be meaningfully described,’ said the assistant attorney general, demonstrating a more impressive grasp of obfuscatory rhetoric than his colleague. Towards the end of the afternoon, a tired Judge McKeown said: ‘I feel like I’m in Alice in Wonderland.’ She was right to: the government’s case rests, essentially, on claiming that whether or not there was a secret is itself a secret, presumably in the hope that the prosecuting lawyers might vanish in a puff of logic. A date for the court to submit its findings has yet to be set.
The spy agencies don’t really need the help of the law to get telecoms providers to do their dirty work for them. Despite a run of legislation increasing government powers of surveillance – the USA Patriot Act being only the most controversial innovation of recent years – the most significant encroachments on privacy have taken place through the activities of the marketplace. The Communications Assistance for Law Enforcement Act of 1994 required phone companies to have the necessary equipment in place to allow wiretapping to be conducted whenever it was warranted. Without the law itself being amended, and in response to a petition submitted by the FBI and other agencies, the industry’s regulatory body issued an order in 2004 to the effect that internet providers, too, must install surveillance-ready equipment within the next three years. The deadline for ‘CALEA-compliance’ was 14 May 2007.
And so a new industry was born, known in the trade as ‘Intelligence Support Systems’, complete with its own annual conference. If you’re in Dubai next February, drop by. Since there’s money to be made, panels cover such areas as ‘Electronic Surveillance Cost Recovery Solutions’ and – for the benefit of those who prefer to carry out the intercepts in-house before passing the data on ready-analysed to the relevant government agencies – the key topic of ‘how to transform packet intercept into intelligence’. It’s worth thinking about exactly what this means. What the law requires is that access to communications records must be presented when a warrant is given. What it does not require – what it, indeed, expressly prohibits – is that all communications, whether domestic or foreign, should be placed under constant surveillance. If a company turns ‘packet intercept into intelligence’, it is behaving very illegally indeed. But this is exactly the opportunity opened up by the services provided by the new industry. The biggest player in the ISS community is a company called Narus. Its machines are capable of playing back anything we’ve looked at on the internet and any conversations we’ve had. The wiring diagrams for AT&T’s secret room include a top-of-the-range Narus 6400. We shouldn’t be surprised.