The National Security Agency is collecting the phone records of vast numbers of Americans every day, The Guardian reported this week. The data being collected includes which phone numbers are dialing and receiving each call, the time of day when each call is made, how long it lasts and other identifying information, but not the content of the calls themselves. Though the court order authorizing the program appears not to apply to all Verizon users – only those for a subsidiary called Verizon Business Network Services, in the U.S. and abroad – it still likely affects millions of people, and it could be one of several similar orders to other parts of Verizon or other carriers. The Associated Press reported on Thursday that the order, which compels Verizon to turn over the information on an "ongoing daily basis," is a "renewal of an ongoing practice."
Activists have been harshly critical of the government order, which came from a secret court under the terms of 1978's Foreign Intelligence Surveillance Act (FISA). As the Guardian report notes, it's the first clear evidence that the massive surveillance carried out under the Bush administration is happening under President Obama as well. "This is not a surprise, but I can't emphasize enough how important it is that this FISA order is now public," says the Electronic Frontier Foundation's Trevor Timm. "The order is shockingly broad, and it's confirmed everything we've been saying in court about the NSA warrantless spying program for years. While NSA spying has receded from the headlines since the Bush years, the NSA's ability to spy on Americans has remained largely intact, and unfortunately, has become more institutionalized than ever."
Senators Ron Wyden (D-Oregon) and Mark Udall (D-Colorado) have previously warned that the Obama administration's surveillance program is far more extensive than Attorney General Eric Holder has publicly acknowledged. "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," they wrote in a 2012 letter to Holder. Section 215 allows the government to pursue secret court orders to obtain "any tangible thing" so long as it is "relevant" to a terrorism or foreign-intelligence investigation. Udall reiterated his concerns in The New York Times this week, saying, "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."
The American Civil Liberties Union issued a scathing statement denouncing the program. "From a civil liberties perspective, the program could hardly be any more alarming," said ACLU deputy legal director Jameel Jaffer. "It's a program in which some untold number of innocent people have been put under the constant surveillance of government agents . . . 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."
Some senators from both parties responded by invoking national security threats. "It's called protecting America," said Sen. Dianne Feinstein (D-California). Sen. Saxby Chambliss (R-Georgia) referred to the seven-year-old NSA program as "nothing particularly new," implying that the concern many are expressing is unwarranted. In a Senate hearing on Thursday, Sen. Lindsey Graham (R-South Carolina) said that as a Verizon customer, "It doesn't bother me one bit for the National Security Agency to have my phone number." Graham repeatedly said that the NSA program is justified because the U.S. is at war, adding, "Taking these tools away would be catastrophic."
The FISA court's official secrecy creates a legal Catch-22 for any American hoping to challenge the order. As blogger Marcy Wheeler and others have noted, the government's "state secrets" rationale means that those who suspect they are being surveilled typically can't prove a specific harm from domestic spying programs like this one – meaning no one has the legal standing required to file a lawsuit, though this revelation could change that.
The court order in question was issued on April 25th and expires on July 19th. The date of the order, shortly after the Boston bombing, has led to speculation that it might be part of an investigation into that attack – but the Washington Post quotes an expert in this field as saying "the order is reissued routinely every 90 days and . . . it is not related to any particular investigation by the FBI or any other agency."
Timm, the EFF activist, lays part of the blame for this program at Congress' feet. "In the last two years, Congress has had the opportunity to pass some very modest oversight provisions to both the Patriot Act and FISA Amendments Act," he says. The proposed amendments were defeated, and the bills were renewed unchanged. Adds Timm, "It's time for Congress to start acting like the oversight body it was meant to be."