The FBI May Have Your Phone Records

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The NSA has been collecting the telephone records of Verizon customers, regardless of any suspected wrongdoing, after obtaining a court order in April. The FISA Court gave the FBI a court order to monitor all national and international calls on an “ongoing, daily basis” for three months. Glenn Greenwald, Ewen MacAskill and Spencer Ackerman report:

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 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. …

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.

Timothy B. Lee adds:

“This confirms what we had long suspected,” says Cindy Cohn, an attorney at the Electronic Frontier Foundation (EFF), a civil liberties organization that has long accused the government of operating a secret dragnet surveillance program. “We’ve been suing over this since 2006.”

The order is based on Section 215 of the Patriot Act, which allows law enforcement to obtain a wide variety of “business records,” including calling records. EFF has long criticized Section 215, which sets a threshold for obtaining records much lower than the “probable cause” standard required to get a search warrant.

But Cohn argues that the kind of dragnet surveillance suggested by the Verizon order exceeds even the authority granted by the Patriot Act. “Section 215 is written as if they’re going after individual people based on individual investigations,” she says. In contrast, the order leaked to the Guardian affects “millions and millions of innocent people. There’s no way all of our calling records are relevant to a terrorism investigation.”

Marc Ambinder weighs in:

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.

Amen. But like Ambers, I’m neither shocked nor that outraged. Meta-data is not the content of our phone records. Gregory Ferenstein’s view:

The revelation dovetails similar exposes on massive government spying projects, including one project to combine federal datasets and look for patterns on anything which could be related to terrorism.

Late last year, I wrote about a few actual harms that citizens should be worried about from these types of big-data spying programs. Blackmailing citizens critical of the government seemed like a distant hypothetical, until we learned that the IRS was auditing Tea Party groups and journalists were being wiretapped. Nefarious actors inside the government like to abuse national security programs for political ends, and that should make us all (even more) suspect of government spying.

Ed Morrissey compares Obama’s data-mining to Bush’s:

Hypocrisy is an unfortunately ubiquitous condition in politics, but in the case of NSA seizing Verizon’s phone records, it’s particularly widespread.  Some of the people expressing outrage for the Obama administration’s efforts at data mining had a different attitude toward it when Bush was in office.  Conversely, we’ll see some people defending Obama who considered Bush evil incarnate for the same thing.

On that front, this kind of meta-data gathering hasn’t outraged me too much under either administration. This kind of technology is one of the US’ only competitive advantages against Jihadists. Yes, its abuses could be terrible. But so could the consequences of its absence. Maybe the record shows my passionate denunciation of this by Bush. I don’t remember it. If someone finds me in a double-standard here, let me know. Pareene zooms out:

While the fact that the NSA has the power to do this has been public for some time, we’ve never seen, until the Guardian obtained one, an actual Foreign Intelligence Surveillance Court warrant. They are very top secret. Someone will probably be prosecuted for leaking this one. That, in fact, is one of the primary issues civil libertarians, like the ACLU and the Electronic Frontier Foundation have been raising: If the way the administration interprets the law is secret, the law itself is effectively secret.