The Guardian newspaper revealed on Wednesday night that the National Security Administration (NSA) is collecting information about the telephone records of millions of Americans through a warrant obtained in a secret court under authority granted in the Patriot Act. This is the first public confirmation that widespread surveillance of Americans, initiated under President George W. Bush in the aftermath of the World Trade Center attacks, has continued under the Obama administration. The program captures phone numbers and other information, but not the content of the conversations.
Warrantless surveillance began shortly after the September 2001 terrorist attacks. The Bush administration began a secret surveillance program in 2001, asking AT&T, Verizon and BellSouth to turn over communications records to the National Security Agency (NSA). The agency’s goal was “to create a database of every call ever made” within the nation’s borders, the USA Today reported in 2006.
Program fell under court supervision in 2007. Following public uproar, the administration placed the program under the surveillance of the Foreign Intelligence Surveillance Act (FISA). In 2008, Congress expanded the Act to allow both foreign and domestic surveillance “as long as the intent is to gather foreign intelligence.” The measure also provided “retroactive immunity to the telecom companies that assisted the Bush administration.”
Congress extended the law through 2017. In December of 2012, Congress voted to reauthorize The FISA Amendments Act until 2017. The Act “allows federal agencies to eavesdrop on communications and review email” with a warrant from the secret FISA court. Sen. Ron Wyden (D-OR), a critic of the program, offered an amendment during floor debate that would have required the NSA disclose an estimate of how often information on Americans was collected and require authorities to obtain a warrant if they wish to search for private information in the NSA databases. In a letter to Attorney General Eric Holder, Wyden, along with Sen. Mark Udall (D-CO), wrote, “We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act.” Wyden and Udall also noted that the administration promised August 2009 to establish “a regular process for reviewing, redacting and releasing significant opinions” of the court, though “not a single redacted opinion has been released.”
What the Verizon order says. The secret Foreign Intelligence Surveillance Court ordered Verizon — which has 121 million customers — to turn over metadata “on an ongoing daily basis” for a three-month period between April 25, 2013 and July 19, 2013. The order does not require Verizon to turn over the content of the calls, but it must share information about the numbers dialed, received and length of call.
What civil libertarians say. The American Civil Liberties Union (ACLU) criticized the administration’s order, noting that “From a civil liberties perspective, the program could hardly be any more alarming.” “It’s a program in which some untold number of innocent people have been put under the constant surveillance of government agents,” Jameel Jaffer, the ACLU’s deputy legal director, said in a statement. Sen. Jeff Merkley (D-OR) also criticized the order. “This bulk data collection is being done under interpretations of the law that have been kept secret from the public,” he said. “Significant FISA court opinions that determine the scope of our laws should be declassified. Can the FBI or the NSA really claim that they need data scooped up on tens of millions of Americans?”
What the Patriot Act says. The order falls under Section 215 of the Patriot Act, which allows the government to make broad demands on telephone carriers for information about calls. Under the law, the government isn’t required to show probable cause, but rather, “there are reasonable grounds to believe” that the tangible things sought are “relevant to an authorized investigation . . . to obtain foreign intelligence information. . . or to protect against international terrorism or clandestine intelligence activities.” An expert told the Washington Post that the order “appears to be a routine renewal of a similar order first issued by the same court in 2006.” The order is apparently “reissued routinely every 90 days and that it is not related to any particular investigation by the FBI or any other agency.”
How the government is responding. The White House responded to the Guardian story by insisting that the data is a “critical tool in protecting the nation from terrorist threats to the United States.” “It allows counter terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States,” an official said. Officials say they will investigate the source of the leak to the Guardian.
During a press conference, Sen. Dianne Feinstein (D-CA) said that the order the Guardian obtained is “the exact three-month renewal” of program underway for the past seven years. “It’s called protecting America,” she said. Asked if other phone companies are giving similar data to NSA, the senators said, “We can’t answer that.”