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.
The disclosure is likely to reignite longstanding debates in
the US over the proper extent of the government's domestic spying powers.
Under the Bush administration, officials in security
agencies had disclosed to reporters the large-scale collection of call records
data by the NSA, but this is the first time significant and top-secret
documents have revealed the continuation of the practice on a massive scale
under President Obama.
The unlimited nature of the records being handed over to the
NSA is extremely unusual. Fisa court orders typically direct the production of
records pertaining to a specific named target who is suspected of being an
agent of a terrorist group or foreign state, or a finite set of individually named
targets.
The Guardian approached the National Security Agency, the
White House and the Department of Justice for comment in advance of publication
on Wednesday. All declined. The agencies were also offered the opportunity to
raise specific security concerns regarding the publication of the court order.
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.
It is not known whether Verizon is the only cell-phone
provider to be targeted with such an order, although previous reporting has
suggested the NSA has collected cell records from all major mobile networks. It
is also unclear from the leaked document whether the three-month order was a
one-off, or the latest in a series of similar orders.
The court order appears to explain the numerous cryptic
public warnings by two US senators, Ron Wyden and Mark Udall, about the scope
of the Obama administration's surveillance activities.
For roughly two years, the two Democrats have been
stridently advising the public that the US government is relying on
"secret legal interpretations" to claim surveillance powers so broad
that the American public would be "stunned" to learn of the kind of
domestic spying being conducted.
Because those activities are classified, the senators, both
members of the Senate intelligence committee, have been prevented from
specifying which domestic surveillance programs they find so alarming. But the
information they have been able to disclose in their public warnings perfectly
tracks both the specific law cited by the April 25 court order as well as the
vast scope of record-gathering it authorized.
Julian Sanchez, a surveillance expert with the Cato
Institute, explained: "We've certainly seen the government increasingly
strain the bounds of 'relevance' to collect large numbers of records at once —
everyone at one or two degrees of separation from a target — but vacuuming all
metadata up indiscriminately would be an extraordinary repudiation of any
pretence of constraint or particularized suspicion." The April order
requested by the FBI and NSA does precisely that.
The law on which the order explicitly relies is the
so-called "business records" provision of the Patriot Act, 50 USC
section 1861. That is the provision which Wyden and Udall have repeatedly cited
when warning the public of what they believe is the Obama administration's
extreme interpretation of the law to engage in excessive domestic surveillance.
In a letter to attorney general Eric Holder last year, they
argued 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.
Privacy advocates have long warned that allowing the
government to collect and store unlimited "metadata" is a highly
invasive form of surveillance of citizens' communications activities. Those
records enable the government to know the identity of every person with whom an
individual communicates electronically, how long they spoke, and their location
at the time of the communication.
Such metadata is what the US government has long attempted
to obtain in order to discover an individual's network of associations and
communication patterns. The request for the bulk collection of all Verizon
domestic telephone records indicates that the agency is continuing some version
of the data-mining program begun by the Bush administration in the immediate
aftermath of the 9/11 attack.
The NSA, as part of a program secretly authorized by
President Bush on 4 October 2001, implemented a bulk collection program of
domestic telephone, internet and email records. A furore erupted in 2006 when
USA Today reported that the NSA had "been secretly collecting the phone
call records of tens of millions of Americans, using data provided by AT&T,
Verizon and BellSouth" and was "using the data to analyze calling
patterns in an effort to detect terrorist activity." Until now, there has
been no indication that the Obama administration implemented a similar program.
These recent events reflect how profoundly the NSA's mission
has transformed from an agency exclusively devoted to foreign intelligence
gathering, into one that focuses increasingly on domestic communications. A
30-year employee of the NSA, William Binney, resigned from the agency shortly
after 9/11 in protest at the agency's focus on domestic activities.
In the mid-1970s, Congress, for the first time, investigated
the surveillance activities of the US government. Back then, the mandate of the
NSA was that it would never direct its surveillance apparatus domestically.
At the conclusion of that investigation, Frank Church, the
Democratic senator from Idaho who chaired the investigative committee, warned:
"The NSA's capability at any time could be turned around on the American
people, and no American would have any privacy left, such is the capability to
monitor everything: telephone conversations, telegrams, it doesn't
matter."
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