By Robert Schlesinger |
Revelations that the National Security Agency is collecting data, "on an ongoing, daily basis," on all domestic and foreign telephone calls made by Verizon customers should absolutely concern Americans. The Verizon order was issued under Section 215 of the Patriot Act, which requires that any records collected "are relevant to an investigation" of a foreign terrorist or other foreign power. Certainly the call activity of every Verizon customer cannot be relevant to such investigations. Instead, an agency explicitly mandated not to direct its surveillance domestically is collecting massive amounts of information about U.S. citizens, regardless of whether that information is relevant to national security.
Given the breadth of the Verizon order, other telecoms surely received similar requests. On its face, this seems to be another instance of the Obama administration continuing the unconstitutional policies of the Bush administration. Tellingly, this order may well be a renewal of orders first obtained under President Bush.
The Obama administration's insistence that it is only collecting metadata, such as phone numbers, the location of a call and its time and duration – essentially everything but the content of the call – obscures the fact that calling records are often sufficient to determine content. If, for example, a journalist writes a story citing unnamed sources, metadata can easily indicate who those sources were. Similarly, the fact that an individual has spoken with an attorney is just as sensitive as the content of that conversation, but this order collects that privileged information.
Moreover, the legal theory behind the Verizon order could easily be applied to a vast array of so-called "third party records" – such as banking transactions, credit card records, internet search information and stored emails – sufficient to provide detailed pictures of ordinary Americans going about their lives.
Section 215 of the Patriot Act was renewed by Congress in 2011 for another four years under the presumption that there be judicial oversight by the Foreign Intelligence Surveillance Court, and that Congress would receive reports on the total number of orders issued every year. But judges on the FISA Court are handpicked by the Chief Justice of the Supreme Court, and the government is free to shop for the most compliant FISA judge. And the Verizon order sweeps up detailed information about millions of Americans in a single order — a deceptive end-run around the disclosure requirements. This is hardly what Congress had in mind when it agreed to renew Section 215.
About Shayana Kadidal Senior Managing Attorney at the Center for Constitutional Rights
Jonathan Turley Professor of Public Interest Law at George Washington University
Alberto R. Gonzales Former United States Attorney General
John Yoo Former Deputy Assistant Attorney General in the Office of the Legal Counsel of the U.S. Department of Justice