NSA collecting information on Verizon customers’ communications

An expert in this aspect of the law told the Post on said Wednesday night that the order appears to be a routine renewal of a similar order first issued by the same court in 2006. The legal expert, who spoke on the condition of anonymity to discuss sensitive issues, said that the order is reissued routinely every 90 days and that it is not related to any particular investigation by the FBI or any other agency.

The information collected
The order instructs 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 Guardian notes that the judge authorized the collection of information defined as “metadata,” or transactional information. The NSA is not collecting the actual communications, and as a result the agency does not require individual warrants. Such warrants would have been required if the agency wanted to read the contents of e-mails or listen to phone conversations.

The judge’s order, however, 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.

Even though the order does not include either the contents of messages or the personal information of the subscriber of any particular cell number, the collection of this information would allow the NSA to build a comprehensive picture of who any individual contacted, how, and when, and possibly from where, retrospectively.

Support for the NSA program
A senior administration official said in a statement:

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 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.
As we have publicly stated before, all three branches of government are involved in reviewing and authorizing intelligence collection under the Foreign Intelligence Surveillance Act. Congress passed that act and is regularly and fully briefed on how it is used, and the Foreign Intelligence Surveillance Court authorizes such collection. There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act.

Senator Diane Feinstein (D-California), chair of the Senate Intelligence Committee, supported the court order and the information collection program. “This is called protecting America,” Feinstein said in an impromptu press conference earlier today. “People want the homeland kept safe.”

The Washington Post reports that Feinstein said it was her understanding that the order had been in place for some time. “As far as I know, this is the exact three-month renewal of what has been the case for the past seven years. This renewal is carried out by [FISA] court under the business records section of the Patriot Act. Therefore, it is lawful. It has been briefed to Congress.”

Beyond the metadata, Feinstein said, more detailed records of calls may be obtained only if there is “reasonable, articulable suspicion” that the records are relevant and related to terrorist activity.

“There have been approximately 100 plots and also arrests made since 2009 by the FBI,” Feinstein added. “I do not know to what extent metadata was used or if it was used, but I do know this: That terrorists will come after us if they can, and the only thing we have to deter this is good intelligence.”

She added later: “This is the reason why we keep TSA doing what it’s doing. This is the reason why the FBI now has 10,000 people doing intelligence on counterterrorism. This is the reason for the National Counterterrorism Center that’s been set up in the time we’ve been active. It’s to ferret this out before it happens. It’s called protecting America.”

Senator Saxby Chambliss (R-Georgia), the ranking Republican on the Senate Intelligence Committee, standing next to Feinstein, said that “Senator Feinstein tells me her committee authorized sweeping FBI powers in case they needed telephone numbers in the future.”

Chambliss said the three-month NSA information program was “nothing new…. Every member of the United States Senate has been advised of this,” and that the material supplied by Verizon was “simply” metadata.

Chambliss said the NSA collection program has “proved meritorious, because we have gathered significant information on bad guys, but only on bad guys, over the years.”

“The information that they’re really looking for is on the other end of the call,” he said at this morning’s news conference with Feinstein. “It’s are they in contact, is somebody in contact with somebody that we know to be a known terrorist. And that’s why it’s metadata only.”

Senator Lindsey Graham (R-South Carolina) expressed strong support for the program today, saying it has proven effective in deterring terrorist activity.

“I’m a Verizon customer. I don’t mind Verizon turning over records to the government if the government’s going to try to match up a known terrorist’s phone with somebody in the United States.” Graham told Fox News. “I’m glad the activity is going on, but it is limited to tracking people who are suspected to be terrorists and who they may be talking to.”

House Intelligence Committee Chairman Mike Rogers (R-Michigan) told the Post earlier today that the NSA program helped thwart a “significant case” of terrorism in the United States “within the last few years.”

Rogers would not elaborate about how the NSA’s information collection program helped foil terrorist plots, but said that “Within the last few years, this program was used to stop a terrorist attack in the United States. We know that. It’s important. It fills in a little seam that we have…. And it’s used to make sure that there is not an international nexis to any terrorism event if there may be one ongoing. So in that regard, it is a very valuable thing.”

Pressed for more details, Rogers said his committee is “working on trying to get this declassified in a way that we can provide more information. We’re not there yet. But it was a significant case that happened within the last few years.”

Criticism of the NSA program
Two Democratic Senators – Ron Wyden of Oregon and Mark Udall of Colorado – have, for the last two years, been publically critical of the Obama administration for what Wyden described as “secret legal interpretation,” but without elaboration. Both senators sit on the Senate Intelligence Committee and are not allowed to discuss the details of information about foreign and domestic spying disclosed to them in their capacity as committee members.

In a letter sent last year to Attorney General Eric Holder, the two senators, referring to the “business records” provision of the Patriot Act, 50 USC section 1861, wrote that “there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows.”

“We believe,” they wrote, “that most Americans would be stunned to learn the details of how these secret court opinions have interpreted” the “business records” provision of the Patriot Act.

Senator Bob Corker (R-Tennessee), the ranking Republican on the Senate Foreign Relations Committee, said he was uncomfortable with the NSA program. “The fact that all of our calls are being gathered in that way, ordinary citizens in America, to me is troubling,” he told reporters. He said that “certainly we all as citizens are owed” an explanation, “and we’re going to be demanding that.” Corker said he has not been briefed further on the program.

Jameel Jaffer, American Civil Liberties Union (ACLU) deputy legal director, said: “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…. 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.”

The Center for Constitutional Rights issued a statement saying that the secret court order was unprecedented. “As far as we know this order from the FISA court is the broadest surveillance order to ever have been issued: it requires no level of suspicion and applies to all Verizon [business services] subscribers anywhere in the U.S.

“The Patriot Act’s incredibly broad surveillance provision purportedly authorizes an order of this sort, though its constitutionality is in question and several senators have complained about it.”

Mark Rumold, a lawyer with the Electronic Frontier Foundation, said: “This is confirmation of what we’ve long feared, that the NSA has been tracking the calling patterns of the entire country. We hope more than anything else that the government will allow a judge to decide whether this is constitutional, and we can finally put an end to this practice.”

“This is a truly stunning revelation,” said Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “This suggests that the government has been compiling a comprehensive record of Americans’ associations and possibly even their whereabouts.”

What happens now
It is not clear whether Hill critics of the administration would treat this case as similar to two other recent surveillance cases which came to light – the tapping of twenty phone lines at the offices of Associated Press, and the efforts by the administration to discover the sources of stories of Fox News’ James Rosen.

It appears that House Speaker John Boehner (R-Ohio) captured the mood on the Hill when he called on President Obama to explain the program to the American people, but he stopped short of criticizing the surveillance itself.

“I trust that Obama will explain to the American people why he considers this a critical tool” in the war on terrorism, Boehner said. He said he was “fully confident that both the House and Senate intelligence committees have provided oversight on this subject and will continue to do so.”

Asked whether he knew about the program, Boehner told reporters, “I don’t discuss classified data here in front of all of you.” He said of Senator Chambliss’s comments, “I’m not familiar with what happens over in the Senate.”