The Guardian's Glenn Greenwald has published what appears to be a top secret court order requiring Verizon to hand over to the National Security Agency all telephone call records for all American customers in real time. The document bears the classification "TOP SECRET//SI//NO FORN, indicating that it deals with signals intelligence and cannot be shared with foreign countries.
On its face, the document suggests that the U.S. government regularly collects and stores all domestic telephone records. I use the caveat because there are several ways to interpret it, assuming it is real. (It looks real.)
A few definitions: to "collect" means to gather and store; to "analyze" means that a computer or human actually does something with the records; to "intercept" means that a computer or human actually listens to or records calls.
A provision in the PATRIOT Act allows the government to
The language here doesn't rule out such bulk disclosures, but it suggests that the FBI or NSA has to provide the FISC with a good reason for doing so.
The court finds that an undefined "application" from the FBI satisfies that PATRIOT Act provision, so it orders Verizon to provide the data to the National Security Agency.
To simply provide the data as a way to expedite future investigations, or as a baseline data set to use for every investigation, seems well outside the scope of the law. It seems Orwellian and is at odds with statements from government officials who've insisted that the government does not collect all Americans' phone records just because they can.
We don't know what application the FISC order responds to.
The NSA, under the FISA Amendments Act, is able to analyze metadata, like incoming and outgoing call records, so long as the Attorney General certifies that a particular set of information is useful for reasons of national security. Then, the NSA asks the Foreign Intelligence Surveillance Court to order that a company comply. As that bill was being ironed out, this step was requested by private companies because they wanted protection from lawsuits in case innocents — or millions of innocents — found that the NSA had gathered their call information.
My own understanding is that the NSA routinely collects millions of domestic-to-domestic phone records. It does not do anything with them unless there is a need to search through them for lawful purposes. That is, an analyst at the NSA cannot legally simply perform random searches through the stored data. He or she needs to have a reason, usually some intelligence tip. That would allow him or her to segregate the part of the data that's necessary to analyze, and proceed from there.
In a way, it makes sense for the NSA to collect all telephone records because it can't know in advance what sections or slices it might need in the future. It does not follow that simply because the NSA collects data that it is legal for the NSA to use the data for foreign intelligence or counter-terrorism analysis.
Unfortunately, we don't know precisely what the NSA can do because its rules are highly classified. This disclosure will hopefully force the government to clarify the rules it uses to actually analyze the data it collects.
I would assume that these orders are typical and are issued by the FISC to other telephone companies, and possibly to companies that process e-mail as well.
Subscribe to the Week