First things first: What's all the fuss about?
The discovery and publication of a top-secret court order, issued this April, compelling Verizon to turn over the telephone records of millions of its U.S. customers to the National Security Agency.
So, whoa, the government has been eavesdropping on our phone conversations?
Not quite (or not that we know of). The order calls for the turnover of metadata, the external information about the telephone calls. It specifically excludes the content of the call. As the order puts it, "telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. 2510(8), or the name, address, or financial information of a subscriber or customer."
Then what kind of metadata was actually sought through the order?
The order compelled Verizon to provides the NSA with "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."
Which includes, per the order:
- originating and terminating telephone number
- International Mobile Subscriber Identity (IMSI) number
- International Mobile station Equipment Identity (IMEI) number
- trunk identifier
- telephone calling card numbers
- time of call
- duration of call
As the New Yorker's Amy Davidson summed it up: "The government seems to have a list of all the people that Verizon customers called and who called them; how long they spoke; and, perhaps -- depending on how precise the cell-phone-tower information in the metadata is, where they were on a given day."
So how do we know about all this?
The order, now that I look at it, is dated April 25 -- which is just 10 days after the Boston bombings. Could there be any connection there?
Unlikely. In fact, very unlikely. The order is one piece of evidence for a surveillance program that seems to have been ongoing since 2006. It's a program that, from what we know so far, is renewed every 90 days. As Senator Diane Feinstein said of the document, "As far as I know, this is the exact three-month renewal of what has been in place for the past seven years."
Who in the government might have access to the metadata being gathered?
The order itself directs that the records be provided to the NSA. Then again, there seems to be nothing in the document that would explicitly prohibit the NSA from sharing the data with other agencies. There's also nothing in the order specifying limitations on who can access the data within the NSA itself.
Basically, the government is binge-watching Americans.-- pourmecoffee (@pourmecoffee) June 6, 2013
What has the government, as far as we know, been doing with the metadata it's gathered?
Very generally, it seems that the information is being put to use in the name of counter-terrorism. (As Feinstein put it: "It's called protecting America.")
In terms of the specifics, though, we don't precisely know how the metadata is being employed. At least in theory, that kind of information is mostly useful for identitying associations and networks of people who may be engaged in criminal activities.
How is the Obama Administration explaining and trying to justify all this?
This way, according to talking points sent to Marc Ambinder:
* On its face, the order reprinted in the article does not allow the Government to listen in on anyone's telephone calls. The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to metadata, such as a telephone number or the length of a call.
* Information of the sort described in the Guardian article has been a critical tool in protecting the nation from terrorist threats to the United States, as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.
* As we have publicly stated before, all three branches of government are involved in reviewing and authorizing intelligence collection under the Foreign Intelligence Surveillance Act. Congress passed that act and is regularly and fully briefed on how it is used, and the Foreign Intelligence Surveillance Court authorizes such collection.
So this would seem to be a continuation of Bush-era surveillance policies.
Okay, but ... seriously, how is this not a violation of the Fourth Amendment?
So the Fourth Amendment generally requires that the government obtain a warrant when it's seeking private information about individual citizens. And the warrant, in turn, should be granted based on probable cause. There's a slight exception to that broad approach, though. Many Supreme Court rulings have held that you don't have a reasonable expectation of privacy when it comes, specifically, to information you share with a third party.
And the courts have now applied that standard to other areas. Which generally makes sense, except for one substantial tension. As David Cole, a Georgetown law professor who focuses on national security and constitutional law, told me: "Basically, everything you do now shares information with a third party." The numbers you dial on the phone, the amount of time you spend on the phone, the location from which you make a phone call -- all of that, because of how our technologies and businesses are structured, is de facto shared with the third party that is your phone company.
And the rub, as Cole explains it, is that the Fourth Amendment doesn't limit the government's ability to obtain any of that third-party information. Bank records, credit card records, Internet searches: none of that, on its own, has protection under the Constitution.
How is it that a FISA court -- a court established under the auspices of the "Foreign Intelligence Surveillance Act" -- is authorizing the government to monitor metadata from domestic calls?
This is where things get dicier. FISA, which was adopted in 1978 and has been amended several times since then, permits the U.S. government to obtain records that are related to a target of a foreign intelligence investigation. While "foreign" can be defined fairly broadly, it's notable -- and legally questionable -- that the FISA court order, in this case, includes purely domestic surveillance.