The National Security Agency is currently collecting the
telephone records of millions of US customers of Verizon, one of
America's largest
telecoms providers, under a top secret court order issued in April.
The order, a copy of which has been obtained by the Guardian,
requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.
The
document shows for the first time that under the Obama administration
the communication records of millions of US citizens are being collected
indiscriminately and in bulk – regardless of whether they are suspected
of any wrongdoing.
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.
The disclosure is likely to reignite longstanding debates
in the US over the proper extent of the government's domestic spying
powers.
Under the Bush administration, officials in security
agencies had disclosed to reporters the large-scale collection of call
records data by the
NSA,
but this is the first time significant and top-secret documents have
revealed the continuation of the practice on a massive scale under
President Obama.
The unlimited nature of the records being handed
over to the NSA is extremely unusual. Fisa court orders typically direct
the production of records pertaining to a specific named target who is
suspected of being an agent of a terrorist group or foreign state, or a
finite set of individually named targets.
The Guardian approached
the National Security Agency, the White House and the Department of
Justice for comment in advance of publication on Wednesday. All
declined. The agencies were also offered the opportunity to raise
specific security concerns regarding the publication of the court order.
The
court order expressly bars Verizon from disclosing to the public either
the existence of the FBI's request for its customers' records, or the
court order itself.
"We decline comment," said Ed McFadden, a Washington-based Verizon spokesman.
The
order, signed by Judge Roger Vinson, compels Verizon to produce to the
NSA electronic copies of "all call detail records or 'telephony
metadata' created by Verizon for communications between the
United States and abroad" or "wholly within the United States, including local telephone calls".
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 information is classed as "metadata", or
transactional information, rather than communications, and so does not
require individual warrants to access. The document also specifies that
such "metadata" is not limited to the aforementioned items. A 2005 court
ruling judged that cell site location data – the nearest cell tower a
phone was connected to – was also transactional data, and so could
potentially fall under the scope of the order.
While the order
itself does not include either the contents of messages or the personal
information of the subscriber of any particular cell number, its
collection would allow the NSA to build easily a comprehensive picture
of who any individual contacted, how and when, and possibly from where,
retrospectively.
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.
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.
Because those activities are classified, the senators,
both members of the Senate intelligence committee, have been prevented
from specifying which domestic surveillance programs they find so
alarming. But the information they have been able to disclose in their
public warnings perfectly tracks both the specific law cited by the
April 25 court order as well as the vast scope of record-gathering it
authorized.
Julian Sanchez, a surveillance expert with the Cato
Institute, explained: "We've certainly seen the government increasingly
strain the bounds of 'relevance' to collect large numbers of records at
once — everyone at one or two degrees of separation from a target — but
vacuuming all metadata up indiscriminately would be an extraordinary
repudiation of any pretence of constraint or particularized suspicion."
The April order requested by the FBI and NSA does precisely that.
The
law on which the order explicitly relies is the so-called "business
records" provision of the Patriot Act, 50 USC section 1861. That is the
provision which Wyden and Udall have repeatedly cited when warning the
public of what they believe is the Obama administration's extreme
interpretation of the law to engage in excessive domestic surveillance.
In
a letter to attorney general Eric Holder last year, they argued that
"there is now a significant gap between what most Americans
think the law allows and what the government secretly
claims the law allows."
"We
believe," they wrote, "that most Americans would be stunned to learn
the details of how these secret court opinions have interpreted" the
"business records" provision of the Patriot Act.
Privacy
advocates have long warned that allowing the government to collect and
store unlimited "metadata" is a highly invasive form of surveillance of
citizens' communications activities. Those records enable the government
to know the identity of every person with whom an individual
communicates electronically, how long they spoke, and their location at
the time of the communication.
Such metadata is what the US
government has long attempted to obtain in order to discover an
individual's network of associations and communication patterns. The
request for the bulk collection of all Verizon domestic telephone
records indicates that the agency is continuing some version of the
data-mining program begun by the Bush administration in the immediate
aftermath of the 9/11 attack.
The NSA, as part of a program
secretly authorized by President Bush on 4 October 2001, implemented a
bulk collection program of domestic telephone, internet and email
records. A furore erupted in 2006 when USA Today reported that the NSA
had "been secretly collecting the phone call records of tens of millions
of Americans, using data provided by AT&T, Verizon and BellSouth"
and was "using the data to analyze calling patterns in an effort to
detect terrorist activity." Until now, there has been no indication that
the Obama administration implemented a similar program.
These
recent events reflect how profoundly the NSA's mission has transformed
from an agency exclusively devoted to foreign intelligence gathering,
into one that focuses increasingly on domestic communications. A 30-year
employee of the NSA, William Binney, resigned from the agency shortly
after 9/11 in protest at the agency's focus on domestic activities.
In
the mid-1970s, Congress, for the first time, investigated the
surveillance activities of the US government. Back then, the mandate of
the NSA was that it would never direct its surveillance apparatus
domestically.
At the conclusion of that investigation, Frank
Church, the Democratic senator from Idaho who chaired the investigative
committee, warned: "The NSA's capability at any time could be turned
around on the American people, and no American would have any privacy
left, such is the capability to monitor everything: telephone
conversations, telegrams, it doesn't matter."
Additional reporting by Ewen MacAskill and Spencer Ackerman
