NSA: Verizon Phone Record Monitoring
- Federal Appeals Court Strikes Down NSA Bulk Record Collection Program: The Second Circuit Court of Appeals ruled today that the NSA's telephone record collection program exceeds legal authority. The government claimed that it could collect all records under the Section 215 "relevance" standard. But the court rejected that argument and held that "such an expansive concept of 'relevance' is unprecedented and unwarranted." The conclusion mirrors the argument EPIC, and a coalition of technical expert, legal scholars, and former members of the Church Committee made in Petition to the Supreme Court in 2013. EPIC explained in its petition, "It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation." The Second Circuit found that Section 215 does not "authorize anything approaching the breadth of the sweeping surveillance at issue here." (May. 7, 2015)
- Senate Hears from Privacy Oversight Board, NSA "Metadata" Program is Ineffective: At a Senate Judiciary Committee hearing today, members of the Privacy and Civil Liberties Oversight Board discussed their review of the Section 215 program, concerning the collection of telephone records on US telephone customers. The Privacy Civil Liberties Board 238 page report found that the program was not effective and had not prevented any terrorist incidents. Recent reports also indicate that only 30% of phone records are actually collected, calling into question the value of the "metadata" program. Senate Judiciary Chairman Patrick Leahy stated that "the administration has not demonstrated" that the program "is uniquely valuable to justify the massive intrusion upon American's privacy." The President recently announced that the current bulk collection program would end and announced a transition process, requiring judicial approval of queries, prior to the expiration of the current authority on March 28. For more information, see EPIC: NSA Verizon Phone Record Monitoring. (Feb. 12, 2014)
- New Limits on NSA Telephone Record Program Established, Authority Expires March 28: The Foreign Intelligence Surveillance Court has granted the government’s motion to limit access by the NSA to the bulk telephone records provided by US telephone companies. Under the new rules, the government cannot "query" the telephone metadata until after the court finds that there is a "reasonable, articulable suspicion that the selection term is associated with" a terrorist organization. The new rules also limit query results to telephone numbers within "two hops" of the selector. President Obama announced the new legal requirement during his recent speech on surveillance reform, when he committed to end the NSA’s bulk record collection program. The NSA's authority to force US telephone companies to turn over records on all their customers will expire on March 28th. The President has recommended that the Intelligence Community and the Attorney General propose an alternative to the bulk collection program prior to that deadline. For more information, see EPIC: FISC and EPIC: NSA Verizon Phone Record Monitoring. (Feb. 7, 2014)
- NY Judge Rules NSA Program Legal, Split Emerges Among Courts: A federal judge in New York has ruled that the NSA's telephone metadata program is legal. The ruling comes less than two weeks after a federal judge in Washington, DC issued an injunction against the telephone record collection program—calling it an "unreasonable search under the Fourth Amendment." The opinions create a split amongst the district courts as to the legality of the NSA's program. Both opinions are expected to be appealed. The President's Review Group recently released its report recommending the end of the NSA's bulk collection of telephony metadata. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the program, shortly after the disclosure earlier this summer. For more information, see In re EPIC and EPIC: FISC Verizon Order. (Dec. 30, 2013)
- Federal Judge Enjoins Telephone Metadata Program, NSA Likely Violated Fourth Amendment: A federal judge today issued an injunction against the NSA telephone record collection program. Judge Leon ruled that the plaintiffs "have a substantial likelihood of showing that their privacy interest outweigh the Governments interest in collecting and analyzing bulk telephony metadata and therefore the NSA's Bulk Metadata program is indeed an unreasonable search under the Fourth Amendment." Judge Leon also stressed that "While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution." This is the first court opinion issued on the controversial surveillance program. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the the program, shortly after the disclosure earlier this summer. The decision of the district court will be stayed pending an appeal by the government to the DC Circuit Court of Appeals. For more information, see In re EPIC and EPIC: FISC Verizon Order. (Dec. 16, 2013)
- Privacy International Files Complaint Against NSA, GCHQ Surveillance Programs: Privacy International, a leading privacy organization based in London, filed a legal complaint today with a UK tribunal about the recently disclosed surveillance programs. Privacy International asserts that the NSA and its United Kingdom counterpart, GCHQ, have been conducting dragnet surveillance of American and British citizens, without any public accountability. PI also charges that by accessing the NSA's information pool, the British government is acting outside the rule of law. EPIC today filed a petition in the US Supreme Court, alleging that the Foreign Intelligence Surveillance Court exceeded its legal authority when it issued the order to Verizon to turn over all of the phone records of its customers. For more information, see EPIC: NSA Petition and EPIC: NSA - Verizon Phone Record Monitoring. (Jul. 8, 2013)
- EPIC Seeks Legal Justification for NSA Domestic Surveillance Program: EPIC has filed a Freedom of Information Act request with the Department of Justice, seeking the agency's justification for the NSA domestic surveillance program. The Department of Justice authorized a request for "all call detail records or 'telephony metadata' created by Verizon for communications . . . (ii) wholly within the United States, including local telephone calls." By statute, the scope of the Foreign Intelligence Surveillance Court is limited to investigations concerning the collection of foreign intelligence. The Department of Justice and the President have been acknowledged that the Department conveyed information about the program to Congress. EPIC has asked Congress to determine whether the special court exceeded its authority when it compelled Verizon to turn over the records of millions of telephone customers. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Clapper v. Amnesty Int'l, and EPIC: USA Patriot Act. (Jun. 7, 2013)
- Congress Begins Investigation of NSA Domestic Surveillance Program: Following the revelation of that the National Security Agency is monitoring domestic communications, members of Congress are initiating new oversight proceedings. The Senate Intelligence Committee will review the program's legal authority. Members of the House Judiciary Committee wrote to President Obama, saying, "We believe this type of program is far too broad and inconsistent with our nation's founding principles." During a hearing of the Senate Appropriations Committee, Sen. Mark Kirk (R-IL)asked Attorney General Eric Holder whether the NSA has spied on members of Congress. EPIC has sent a letter to leaders in Congresscalling for an investigation into the NSA's activities, and alleging that the FISC's authorization of the Verizon search was unlawful. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Clapper v. Amnesty Int'l, and EPIC: USA Patriot Act.
(Jun. 7, 2013)
- EPIC to Congress: 'NSA Domestic Surveillance Program is Unlawful': EPIC has sent a letter to Congress charging that the National Security Agency's demand for domestic telephone records is unlawful. EPIC stated, "The Foreign Intelligence Surveillance Court ordered an American telephone company to disclose to the NSA records of wholly domestic communications. The FISC lacks the legal authority to grant this order." EPIC's letter calls on Congress to conduct hearings and determine whether the specialized court, charged with overseeing the collection of foreign intelligence, may also authorize surveillance of solely domestic communications. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Clapper v. Amnesty Int'l, and EPIC: USA Patriot Act. (Jun. 7, 2013)
- Sweeping NSA Domestic Surveillance Order Approved Without Any Ties to Foreign Intelligence Collection: An unprecedented order from the Foreign Intelligence Surveillance Court indicates that the FBI and the NSA obtained vast amounts of data on Verizon customers without any ties to a foreign intelligence investigation. Last year, in testimony for the House Judiciary Committee, EPIC urged Congress not to renew the Foreign Intelligence Surveillance Act without first establishing appropriate oversight mechanisms. EPIC warned "there is simply too little known about the operation of the FISA today to determine whether it is effective and whether the privacy interests of Americans are adequately protected." For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Clapper v. Amnesty Int'l, and EPIC: USA Patriot Act. (Jun. 6, 2013)
On June 5, 2013, the Guardian published a leaked Foreign Intelligence Surveillance Court ("FISC") Order requiring the Verizon Business Network (a division of Verizon) to deliver massive amounts of phone record "metadata" to the National Security Agency ("NSA").
Beginning on April 25, 2013, the Order requires the divulgence of Verizon records to the NSA "on an ongoing daily basis thereafter for the duration of the Order..." which is set to expire on July 19, 2013. However, Senators on the Senate Intelligence Committee have indicated that the order is part of an ongoing renewal process that has occurred for at least seven years.
The information Verizon is required to disclose, according to the order, concerns "telephony metadata" of calls made between The United States and abroad, and wholly within the United States, including local telephone calls. Such metadata includes, but is not limited to:
- the originating and terminating phone numbers
- the International Mobile Subscriber Identity ("IMSI") number
- the International Mobile station Equipment Identity ("IMEI") number
- the trunk identifier
- telephone calling card numbers
- the time and duration of the call
The order does not compel release of content of the communications, but experts have noted that the data collected would likely allow for the identification of telephone users. A March 2013 study of 1.5 million cellphone users’s location data was able to uniquely identify 95% of the individuals. When metadata is cross-referenced with publically available data, it is possible to reveal "someone's name, address, driver's licence, credit history, social security number and more."
The FISC Order details that "no person shall disclose to any other person that FBI or NSA has sought or obtained tangible things under this Order", except to those who need to be informed to comply with the order, to seek legal advice, or to others as permitted by the Director of the FBI.
An anonymous expert cited by the Washington Post stated that the order "appears to be a routine renewal of a similar order first issued by the same court in 2006." The source said the order is "reissued routinely every 90 days and that it is not related to any particular investigation by the FBI or any other agency."
On June 6, 2013, Senators Feinstein (D-CA) and Chambliss (R-GA), both on the Senate Intelligence Committee confirmed that the sharing of information has been ongoing. Senator Feinstein said that "As far as I know, this is the exact three-month renewal of what has been in place for the past seven years."
The Top Secret FISC Order was scheduled for declassification on April 12, 2038.
The publication of the Order prompted widespread criticism. The ACLU called the surveillance "beyond Orwellian." Senator Jeff Merkley (D-OR) said that the "secret bulk data collection is an outrageous breach of Americans' privacy. I have had significant concerns about the intelligence community over-collecting information about Americans' telephone calls, emails, and other records…." Former Vice President Al Gore called the "secret blanket surveillance" "obscenely outrageous." Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice called it a "truly stunning revelation" and that the information "suggests that the government has been compiling a comprehensive record of Americans' associations and possibly even their whereabouts."
The White House defended the surveillance as "a critical tool in protecting the nation from terrorist threats to the United States."
The Fourth Amendment states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Under the U.S. PATRIOT Act § 215 (50 U.S.C. § 1861), "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 obtain foreign intelligence information not concerning a United States person or 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."
The exact government interpretation of § 215 is classified. In a 2012 letter to Attorney General Eric Holder, Senators Ron Wyden (D-OR) and Mark Udall (D-CO) warned of the increasing discrepancy between government use and public knowledge of this clause, stating it is likely against the stance of much of the American public.
EPIC has been involved in several areas related to FISC activities and domestic surveillance.
In 2012, EPIC President Marc Rotenberg testified on the need of increased oversight and transparency before the House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security regarding reauthorization of the FISA Amendment Act of 2008.
EPIC filed an amicus brief with the Supreme Court in the case of Clapper v. Amnesty International USA concerning the NSA's surveillance and collection of domestic communications.
EPIC has several webpages devoted to informing the public about developments in regards to wiretapping, FISA, FISC, the USA PATRIOT Act, and locational privacy.
- U.S. PATRIOT Act See § 215
- 50 USC § 1861 Access to certain business records for foreign intelligence and international terrorism investigations.
- FISC Order
- Wyden and Udall letter to AG 9/21/11
- Wyden and Udall letter to AG 3/15/12
- Foreign Intelligence Surveillance Act of 1978 and Amendments of 2008
- The Verizon Records and the Dark Side of 'Big Data,' Joshua Keating, Foreign Policy, June 6th, 2013.
- Telephone Metadata and What it Can Tell the Authorities About You, James Ball, The Guardian, June 5th, 2013.
- Verizon Wants You to Blame the Government - and It's Working, Rebecca Greenfield, The Atlantic Wire, June 6th, 2013.
- Phone Sex, Banks & Google for Emails: The NSA Spying Is Bigger Than Verizon, Elspeth Reeve, The Atlantic Wire, June 6th, 2013.
- U.S. responds to NSA disclosures, Marc Ambinder, The Week, June 6, 2013.
- Obama Administration Defends Phone Record Collection, Mark Hosenball & Susan Heavey, Reuters, June 6th, 2013.
- U.S. Is Secretly Collecting Records of Verizon Calls, Charlie Savage & Edward Wyatt, New York Times, June 6th, 2013.
- Is Verizon Turning Over Records of Every Domestic Call to the NSA?, Orin Kerr, Volokh Conspiracy, June 5th, 2013.
- Report: NSA Asked Verizon for Records of All Calls in the U.S., Timothy B. Lee, Washington Post, June 5th, 2013.
- NSA's Verizon Spying Order Specifically Targeted Americans, Not Foreigners, Andy Greenberg, Forbes, June 5, 2013
- Verizon Providing All Call Records to U.S. Under Court Order, Ellen Nakashima, The Washington Post, June 5th, 2013.
- NSA Collecting Phone Records of Millions of Verizon Customers Daily, Glenn Greenwald, The Guardian, June 5th, 2013.
- EPIC: Wiretapping
- EPIC: Foreign Intelligence Surveillance Act (FISA)
- EPIC: Foreign Intelligence Surveillance Court (FISC)
- EPIC: Clapper v. Amnesty International USA
- EPIC Amicus brief for Clapper v. Amnesty International USA
- Testimony of Marc Rotenberg, Hearing on The FISA Amendments Act of 2008 before the House Committee on the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security
- EPIC: Patriot Act
- EPIC: Locational Privacy
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Machines of Loving Grace by John Markoff