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Your telephone records belong to us

June 5, 2013, at 9:58 PM
 

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.

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.

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

a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

(2) An investigation conducted under this section shall
(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

b) Each application under this section
(1) shall be made to--
(A) a judge of the court established by section 103(a); or
(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and
(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.
(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.

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.

 

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