The National Security Agency has long justified its spying powers by arguing that its charter allows surveillance on those outside of the United States, while avoiding intrusions into the private communications of American citizens. But the latest revelation of the extent of the NSA’s surveillance shows that it has focused specifically on Americans, to the degree that its data collection has in at least one major spying incident explicitlyexcluded those outside the United States.
In a top secret order obtained by the Guardian newspaper and published Wednesday evening, the FBI on the NSA’s behalf demanded that Verizon turn over all metadata for phone records originating in the United States for the three months beginning in late April and ending on the 19th of July. That metadata includes all so-called “non-content” data for millions of American customers’ phone calls, such as the subscriber data, recipients, locations, times and durations of every call made during that period.
Aside from the sheer scope of that surveillance order, reminiscent of the warrantless wiretapping scandal under the Bush administration, the other shocking aspect of the order its target: The order specifically states that only data regarding calls originating in America are to be handed over, not those between foreigners.
“It is hereby ordered that [Verizon Business Network Services’] Custodian of Records shall produce to the National Security Agency…all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls,” the Guardian’s copy of the order reads. “This Order does not require Verizon to include telephony metadata for communications wholly originating and terminating in foreign countries.”
Though the classified, top secret order comes from the FBI, it clearly states that the data is to be given to the NSA. That means the leaked document may serve as one of the first concrete pieces of evidence that the NSA’s spying goes beyond foreigners to include Americans, despite its charter specifically disallowing surveillance of those within the United States.
“In many ways it’s even more troubling than [Bush era] warrantless wiretapping, in part because the program is purely domestic,” says Alex Abdo, a staff attorney with the American Civil Liberties Union’s National Security Project.”But this is also an indiscriminate dragnet. Say what you will about warrantless wiretapping, at least it was targeted at agents of Al Qaeda. This includes every customer of Verizon Business Services.”
The leaked document, in fact, is labelled as an order from the Foreign Intelligence Surveillance Court, a body whose powers were created under the Foreign Intelligence Surveillance Act of 1978 and then broadened after the September 11th, 2001 attacks, with the purpose of intercepting communications between foreign agents and those between enemies abroad and their agents within the U.S. Similarly, the NSA’s charter states that it focuses on interception and analysis of foreign communications, not those within the United States.
But the Verizon order seems to show that the NSA, using FISA, has specifically gathered communications data that both begins and ends with Americans. That domestic surveillance may be allowed under FISA’s low standard for the “relevance” of the data demanded from Internet companies and telephone carriers in the investigations of foreigners, says Julian Sanchez, a research fellow with the CATO Institute focused on privacy and civil liberties. ”The overall purpose of this program is to identify foreign terrorists,” says Julian Sanchez. “But in fact it extends well beyond whether the individual you’re investigating is foreign. If you think an American citizens’s email has information about what a foreign power or individual is doing, that’s ‘relevant.’ The purpose of the investigation is not a constraint on the target or the people from whom the information is sought.”
“If they data mine huge blocks of call records, they’re getting lots of innocent Americans’ data,” adds Sanchez, “But the argument, I imagine, is ‘we’re doing data mining to look for suspicious patterns to help us identify foreign terrorists.’”
My colleague Kashmir Hill has contacted the NSA and Verizon for comment, and I’ll update this post if we hear back from either of the two. Update: Verizon has declined to comment.
In fact, the Verizon order may be just a glimpse of a much larger surveillance program. It’s unclear whether other carriers, not to mention Internet giants like Google, Microsoft and Facebook, have been caught up in similar domestic surveillance, or how long that surveillance has been taking place. But as theGuardian notes, Senators Ron Wyden and Mark Udall have issued cryptic warnings for the last two years that the Obama administration has engaged in widespread surveillance of Americans.
Other phone carriers including AT&T, T-Mobile and Sprint all responded to a congressional inquiry on government surveillance last year, stating that they had turned over hundreds of thousands of users’ records to law enforcement agencies, though that inquiry didn’t focus on intelligence agency requests.
In a congressional hearing in March of last year, the NSA’s Director Keith Alexander responded to questions from Georgia Congressman Hank Johnson, who brought up allegations of the NSA’s domestic spying made in aWired magazine article earlier that month, denying fourteen times that the NSA intercepted Americans’ communications.
“What judicial consent is required for NSA to intercept communications and information involving American citizens?” Johnson asked at the time.
“Within the United States, that would be the FBI lead,” responded Alexander. “If it were a foreign actor in the United States, the FBI would still have to lead. It could work that with NSA or other intelligence agencies as authorized. But to conduct that kind of collection in the United States it would have to go through a court order, and the court would have to authorize it. We’re not authorized to do it, nor do we do it.”
In light of this latest leak and the surveillance it’s exposed, the NSA may have some more explaining to do.
Read the full FISA court order sent to Verizon here.