Within the past week, US citizens have been shocked by information that apparently supports some previously dismissed conspiracy theorists’ views that claim our government is not to be trusted when it comes to our private phone conversations. This latest scandal apparently began on June 5th when The Guardian [http://www.guardiannews.com] news service obtained a copy of a confidential order from a voluntary informant. The order was issued from the Foreign Intelligence Surveillance Court (FISC) in response to an FBI application requesting that the Custodian of Records for the Verizon Business Services (VBNS), a subsidiary of Verizon, turn over to the National Security Agency (NSA) all telephony metadata records. This is to be from the date of the order (April 25th) and on an “ongoing and daily basis” for the three months following. This secret order from a super-secret court became the spark that set off a flame of controversy and lawsuits that some think was inevitable after choices made by lawmakers following the events of 9/11.
Most US citizens are familiar with the NSA, FBI, and even the Verizon cell phone company, but The Foreign Intelligence Surveillance Court is an organization new to most. The FISC was established by the Foreign Intelligence Surveillance Act of 1978 to handle requests for surveillance warrants by US Federal law enforcement agencies, like the FBI and NSA.
Until 2001, the privacy of citizens of the United States was assured by constitutional amendments that protected against illegal search and seizure, and allowed the freedom of speech. Later laws like the Electronic Communications Privacy Act of 1986, that expanded on earlier wire-tapping laws already on the books, made listening to, reading, or recording not only phone calls, but email and other computer files, illegal without a court order.
It was after the terrorist attacks of 9/11/2001, when The Patriot Act was established, that the US Government began to come very close, in some peoples opinion, to violating rights of privacy. The section of the Act in question here is Section 215, or the business records provision, that allows FISC to authorize broad warrants for almost any type of records held by banks, libraries, and doctors. The investigating agency only needs to show that there is an “authorized investigation” in place, not necessarily a connection to terrorists.
It is also arguable that the data requested by the NSA from Verizon, on the surface, does not seem very sensitive. Meta Data consists of the phone numbers of both calling parties, the International Mobile Subscriber Identity (IMSI) number, the calling-card numbers, and the time and duration of the call. It does not include the names, addresses, or account information of the callers, or any content of the conversation, recorded or otherwise. Meta data, however, can be combined with cell-location data and a good investigator can extrapolate from that information such as call locations, owners of accounts, and more; making meta data fairly valuable and more of an intrusion than some may think.
Randy Milch, Verizon’s general counsel, stated in a letter to employees that “There is no indication that this order [to Verizon] was unique. . .it is likely that business records orders like this exist for every major American Telecommunications company. . .if you make calls in the United States, the NSA has those records. This has been going on for at least 7 years, and probably longer.” Senate Intelligence Committee (SIC) Republican, Senator Saxby Chambliss, of Georgia, explains that this is because the Senate has been aware of the NSA collecting massive amounts of call records since at least 2007. Chambliss stated “Everyone’s been aware of it for years, every member of the Senate,” and the SIC chairwoman Senator Dianne Feinstein of California, also said in defense of the surveillance. . .”I do not know to what extent metadata was used or if it was used but I do know this. . . terrorists will come after us if they can and the only thing we have to deter this is good intelligence.” Feinstein went on to add that the three-month period of surveillance in the order has been “repeatedly reauthorized for years.”
The day after The Guardian leaked the order, The American Civil Liberties Union (ACLU) released a copy of the order with an analysis of the content, on their website [http://www.aclu.org/blog/national-security/nsa-surveillance-order-explained-aclu]. Since then at least two lawsuits have been officially filled. Larry Klayman, the past chairperson of Judicial Watch [http://www.judicialwatch.org/], an online watchdog organization, on June 9th, brought the first. Klayman’s suit, filed in US District Court (District of Columbia), names Verizon, the NSA and Justice Department, President Barack Obama, and Attorney General Eric Holder among others. In his official statement, Klayman declared that the order “violates the U.S. Constitution and also federal laws, including, but not limited to, the outrageous breach of privacy, freedom of speech, freedom of association, and the due process rights of American citizens.”
Two days later on June 11th the ACLU increased the pressure by filling their own lawsuit stating that the mass collection of records, “violates Americans’ constitutional rights of free speech, association, and privacy.” ACLU staff attorneys have been carefully watching the United States Government’s law enforcement agencies and how they have been using the Patriot Act since before the first mass collection of calling records in 2007. When The Guardian first provided a copy of the NSA’s order on the 5th, by the next day, on their website, the ACLU was able to provide their own copy of the order with explanations to make it understandable to the general public.
There is still a lawsuit pending from the Electronic Frontier Foundation (EFF) against AT&T from 2006 in which the EFF alleges that AT&T helped the NSA unlawfully monitor US citizen’s communications routed through AT&T’s networks and over the Internet. There have been so many controversies that even one of the main drafters of the Patriot Act itself, Representative James Sensenbrenner Jr. from Wisconsin, wrote in a letter that “the President Barack Obama administration was abusing the law.” He went on to say that, he was “extremely disturbed by what appears to be an overbroad interpretation of the act.” Sensenbrenner went on to write, “I do not believe the released FISA order is consistent with the requirements of the Patriot Act. How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the act?”
Whether he was correct in his assessment, or Dianne Feinstein was correct in hers, the issue of Privacy rights versus National Security will most likely continue to be debated as long as the right to debate issues openly in the US remains.