Confidential records of millions of phone calls placed between numbers in the United States and individuals both abroad and inside the country have been collected by a government intelligence agency since earlier this year.
Revelations of the formerly classified program raise new questions over the scope of the president’s domestic surveillance program and how many of the highly controversial measures introduced during the Bush administration and once lambasted by then-Senator Obama have been sustained or otherwise tweaked to preserve the programs but prevent public disclosure.
Already faced with criticism over how the Department of Justice and Attorney General Eric Holder has treated journalists related to several leak investigations, the White House will certainly deal with more fallout over a new report that details a vast network of limited government snooping on every call placed through one of the country’s largest phone companies.
As reported by The Guardian’s Glenn Greenwald in the British newspaper on Wednesday, the FBI and National Security Agency have been running a comprehensive program of “daily” collection and analysis of phone records for millions of customers signed up for service with Verizon. While the company is best known for its cell phone operations, the NSA surveillance includes both mobile and landline telephone records.
The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.
The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.
The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.
The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.
Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.
US national security officials are able to collect the vast lists of phone numbers, locations and times — but not actual conversations — thanks to an unprecedented court order that forces Verizon to compile and deliver its phone records to the government on an “ongoing, daily basis.” The data to be collected includes not only calls to or from foreign countries but also for the first time all domestic phone records, including local calls.
Made public through a government leak, the court order that created a legal basis for the snooping program prevented Verizon from notifying its customers or the general public about the surveillance or any requests for the phone records of individuals. And while no specific data pertaining to the contents of calls viewed by security officials is being stored, the level of detail provided by location tags and call times would allow the government to easily build a “comprehensive picture” of the routine phone contacts of any citizen.
The court order expressly bars Verizon from disclosing to the public either the existence of the FBI’s request for its customers’ records, or the court order itself.
“We decline comment,” said Ed McFadden, a Washington-based Verizon spokesman.
The order, signed by Judge Roger Vinson, compels Verizon to produce to the NSA electronic copies of “all call detail records or ‘telephony metadata’ created by Verizon for communications between the United States and abroad” or “wholly within the United States, including local telephone calls”.
The order directs Verizon to “continue production on an ongoing daily basis thereafter for the duration of this order”. It specifies that the records to be produced include “session identifying information”, such as “originating and terminating number”, the duration of each call, telephone calling card numbers, trunk identifiers, International Mobile Subscriber Identity (IMSI) number, and “comprehensive communication routing information”.
The information is classed as “metadata”, or transactional information, rather than communications, and so does not require individual warrants to access. The document also specifies that such “metadata” is not limited to the aforementioned items. A 2005 court ruling judged that cell site location data – the nearest cell tower a phone was connected to – was also transactional data, and so could potentially fall under the scope of the order.
While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively.
The kind of technique utilized by the administration in its phone data surveillance is known as “fishing,” a controversial tactic praised by some analysts for its ability to monitor terror suspects and first approved under the 2001 Patriot Act. The court order approving the latest NSA program was constructed under the expanded federal authority granted by the Bush-era law derided by many Democrats and civil libertarians as illegal.
A vigorous defense of “fishing” and the blanker surveillance detailed in the revelation of the Verizon spying network was launched by the Obama administration as it tries to head off another potential scandal.
One anonymous administration official told Politico that the phone records policy is “vital” to monitoring suspected terrorists and has been approved by “all three branches of government,” an indication that Congress was consulted before the mid-April court order launched the surveillance protocol.
While refusing to confirm the exact specifics of The Guardian’s report, the unnamed official reaffirmed that no conversations were collected and no recordings were included in the vast surveillance net; the bulk of the records consisted entirely of generally opaque “metadata.”
The Obama administration is defending itself against charges it secretly obtained records for Verizon phone calls made in the United States, arguing that the policy is a vital tool in monitoring terrorists and has the approval of “all three branches of government,” according to a senior administration official.
“On its face, the order reprinted in the article does not allow the government to listen in on anyone’s telephone calls,” said the official, who asked not to be named. “The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to metadata, such as a telephone number or the length of a call.”
Still, the official declined to confirm the authenticity of the classified Foreign Intelligence Surveillance Court order published Wednesday by Britain’s Guardian newspaper, which described a wide sweep of Verizon calls both domestic and international by Americans by the National Security Agency.
“Information of the sort described in the Guardian article has been a critical tool in protecting the nation from terrorist threats to the United States, as it allows counterterrorism 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,” the official said.
News of the government’s storing of phone records represents the worst fears of many lawmakers on Capitol Hill who have long railed against the broad and unchecked powers granted to the federal security and intelligence apparatus by post-9/11 legislation and court orders.
Many subsequent renewals of some Patriot Act provisions crafted in 2001 have drawn increasingly skeptical arguments from some in Congress. Senators Mark Udall of Colorado and Ron Wyden of Oregon have been leading the efforts to spur dramatic reforms of that particular law as well as other provisions enabling vast government spying authority.
Udall responded to news of the Obama administration’s data collection by telling the tech news site CNET that the reports were “shocking” and a sign that Americans need greater “transparency” of surveillance programs.
The Justice Department’s secret interpretation of Section 215 was what alarmed Sens. Ron Wyden (D-Oregon) and Mark Udall (D-Colorado) when the Patriot Act was up for renewal two years ago. Both senators served on the intelligence committee and were briefed on the NSA’s activities.
“I believe that when more of my colleagues and the American public come to understand how the Patriot Act has actually been interpreted in secret, they will insist on significant reforms too,” Wyden said at the time.
Udall told CNET this evening: “While I cannot corroborate the details of this particular report, this sort of widescale surveillance should concern all of us and is the kind of government overreach I’ve said Americans would find shocking. As a member of the Senate Intelligence Committee, it’s why I will keep fighting for transparency and appropriate checks on the surveillance of Americans.”
Reaction from civil liberties activists has been considerably stronger and threatens to create a permanent gulf between those on the left concerned with broad government powers to fight “terror” and an administration lapsing into behaviors the president once decried when supported by his Republican predecessor in the White House.
A legal director for the American Civil Liberties Union described reports that the administration was “data-mining” the pone calls of Americans as “alarming” and “beyond Orwellian.”
“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,” said Jameel Jaffer, American Civil Liberties Union deputy legal director. “It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.”
While some may react to the phone records program as indicative of President Obama’s policies, particularly Republicans seeking to further embellish the recent controversies that have surrounded the president in the past month, there is no indication that any of the powers the administration sought and attained were unique.
Rather than an indictment of the current president, the uncovering of yet another massive surveillance program designed to spy on Americans is part of a larger trend that has rooted itself in post-9/11 federal policies. The Obama administration program builds on previous snooping controversies that also put millions of Americans under legally questionable surveillance.
Using the same courts and Patriot Act provisions as the Obama administration did in launching its data collection efforts, President Bush approved a similar NSA program to more closely “monitor” communications and phone calls between US citizens and individuals overseas.
Revealed by leaks to the press, the Bush-era spying was significantly more intensive, collecting and “analyzing” the contents the phone calls and email messages of an unknown number of Americans.
President Bush authorized a surveillance program in late 2001, allowing the NSA to monitor communications between the United States and foreign countries without court oversight when a party is believed to be linked to al-Qaeda. Administration officials have recently acknowledged that the NSA program was broader, and intelligence sources have described a vast effort to collect and analyze telephone and e-mail communications that were later scrutinized by the government for desired information. There have been fierce disagreements about the program’s legality. Critics say the agency’s eavesdropping activities violate the 1978 Foreign Intelligence Surveillance Act (FISA), when “there is probable cause to believe” that one of the parties is a member of a terrorist group.
Revelations in May 2006 showed that the NSA made an effort to log a majority of the telephone calls made within the United States since Sept. 11, 2001 — amassing the domestic call records of tens of millions of U.S. households and businesses in an attempt to sift them for clues about terrorist threats.
On Sept. 7, 2006, President Bush defended the controversial program and urged Congress to give him additional authority to continue the warrantless eavesdropping, as part of a series of speeches on the war on terror leading up to the fifth anniversary of the Sept. 11, 2001 attacks.
On Jan. 17, 2007, the Bush administration announced an abrupt reversal to its policy, agreeing to disband the controversial program run by the National Security Agency that it had staunchly defended, to replace it with a new effort overseen by the secret court that administers the FISA.
On Aug. 6, 2007, President Bush signed into law an update to the FISA that expands the government’s power to eavesdrop without warrants on foreign terrorism suspects’ communications in the United States.