That is a fun question. Convince is a very strong term, and I'm not sure anything political actors can say at this stage can actually attain convincing power of 1.
Here's a quick stab at answering:
On the question of whether or not the ability exists to listen to phone calls:
The programs in question, and all other intelligence operations and agencies, do not possess the technical capabilities or requirements to collect, intercept, parse, translate, analyze, listen, or store the content of any person's voice communications at any point in time. We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's phone calls either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant.
On the question of whether or not the ability exists to peruse the contents of people's email and other non-audio comunications (IM, SMS, etc.):
The programs in question, and all other intelligence operations and agencies, do not possess the technical capabilities or requirements to collect, intercept, read, parse, analyze, translate, transcribe, or store the content of any person's data communications at any point in time. We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's data communications either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant.
On the question of whether the government does indeed have databases of private communications records:
We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's data communications either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant. No person's communications data is present in a database unless that person is expressly mentioned as the target of a warrant.
Of course, I'd accept equivalent answers that say the opposite. Either way, the language would be far less obfuscating and make it clear exactly what the government is or is not doing.
I would also further elaborate that automatic analysis of private communications prior to the date of a warrant can not be used as justification to obtain a warrant to gather information going forward.
Any automatic analysis of content should be considered fruit of a poisonous tree and every single thing that comes from that fruit, including a approval of a warrant and fruit gathered after the warrant was issued should be considered poisoned.
The worst of all this is that the classified nature of all this makes it impossible to determine when evidence was gathered from this poisonous tree.
Absolutely. I'd agree that all conclusions derived from such analysis ought to be thrown out and cause for dismissal of any case/warrant issued. This really is what is at stake--well, beyond the violations of the 4th Amendment and other legal expectations/protections.
This is a dangerous step. Not to go too Hollywood on the subject, but I'm struck by the ways this could increase in effectiveness to the point that the next whistleblower/debacle centers on the ways in which the collection and analysis of private papers/data lead to arguing that such programs aid in the Minority Reportish prevention of impending crimes. We're already (supposedly) using this to prevent terrorism. Next thing could be robberies, murders, "illegal" demonstrations, dissent, civil disobedience, etc.--in other words, thoughtcrime.
Moreover, where juridical proceedings are concerned, how in the hell is Joe/Jane Public supposed to argue that s/he is not guilty of something that is alleged on the basis of data contained in a secret database of dubious legal, but otherwise publicly accepted, nature? How do you prove that incriminating communication records are not yours, or that they do not mean what the government alleges they mean?
I don't know about proof, but in the Zazi case we saw that there were three people who were identified as connected to the plot early on who were quietly dropped from the story as it progressed, leading one to conclude that they were indeed false positives.
As for "robberies, murders, etc.," we know that Section 215 orders have been used against hackers, and the government themselves have described the purpose of the programs to be applied to "criminals" in general:
Your distinction between existing records/data and records created going forward from the time of the warrant is an important one that I haven't seen expressed so clearly before.
Do you think the answer about databases of records should address government access to databases kept by major companies?
I, too, think it is a vital distinction. Sadly, I think the government is relying on ambiguous language in the Patriot Act (and subsequent reauthorization amendments) to bypass typical warrant restrictions.
If I were on the legal team interpreting the laws and their intent as it surrounds intelligence gathering, I'd see one widely open door--the Patriot act allowed for the searching of email and telephone communication records, and National Security Letters allow law enforcement to use these letters to investigate US citizens, even when they are not suspected of committing a crime, and absolve them of the requirement to obtain a warrant before searching "records".
Given that much of the debate is centering on conceptions of records, collecting, intercepting, databases, metadata, etc., I would guess there's a significant probability that the NSA et al. interpret the Patriot Act in such a way that the widespread collection of records is well within the dictates of the law and does not run afoul of the any legal requirements.
Where databases owned by private companies are concerned, I expect those fall under established warrant procedures that require law enforcement to stipulate the need to search and seize such records from the companies when a proper warrant is issued declaring the specific items to be seized and from where. So, I would guess that a legal challenge against government access to databases kept by major companies would be a rather Sisyphean battle, given warrant case law and precedents. Of course, with warrants, the suspected party is, I believe, able to be notified/aware of the warranted search & seizure. With NSLs, however, the Patriot Act lifted that, creating instead a much more attractive (to law enforcement & intelligence agencies, at least) vehicle that carries an automatic gag order.
The real issue is government access to those records en masse and without standing warrants specifically detailing the targets of collection. And here is where we start wading into creative interpretation of (possibly intentional) ambiguously worded legislation granting expansive powers to search records without a warrant, records which can now include telephone and email correspondence, as well as other records which have been commonplace in the last several decades of warrant issues.
Here's a quick stab at answering:
On the question of whether or not the ability exists to listen to phone calls:
The programs in question, and all other intelligence operations and agencies, do not possess the technical capabilities or requirements to collect, intercept, parse, translate, analyze, listen, or store the content of any person's voice communications at any point in time. We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's phone calls either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant.
On the question of whether or not the ability exists to peruse the contents of people's email and other non-audio comunications (IM, SMS, etc.):
The programs in question, and all other intelligence operations and agencies, do not possess the technical capabilities or requirements to collect, intercept, read, parse, analyze, translate, transcribe, or store the content of any person's data communications at any point in time. We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's data communications either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant.
On the question of whether the government does indeed have databases of private communications records:
We cannot collect, intercept, read, parse, analyze, translate, transcribe, or store any person's data communications either in the present or the past without a properly executed warrant. When such warrant is executed, we can only engage in technical operations that allow us to wiretap or request records of private communications from the date of the warrant forward. Every communication record in the possession of intelligence agencies is tied to an executed warrant and does not pre-date the date of the warrant. No person's communications data is present in a database unless that person is expressly mentioned as the target of a warrant.
Of course, I'd accept equivalent answers that say the opposite. Either way, the language would be far less obfuscating and make it clear exactly what the government is or is not doing.