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Tuesday, September 27, 2016

by Justin Elliott and Theodoric Meyer, ProPublica.

Last week saw revelations that the FBI and the National Security Agency have been collecting Americans’ phone records en masse and that the agencies have access to data from nine tech companies.

But secrecy around the programs has meant even basic questions are still unanswered. Here’s what we still don’t know:

Has the NSA been collecting all Americans’ phone records, and for how long?

It’s not entirely clear.

The Guardian published a court order that directed a Verizon subsidiary to turn over phone metadata — the time and duration of calls, as well as phone numbers and location data — to the NSA “on an ongoing daily basis” for a three-month period. Citing unnamed sources, the Wall Street Journal reported the program also covers AT&T and Sprint and that it covers the majority of Americans. And Director of National Intelligence James Clapper himself acknowledged that the “collection” is “broad in scope.”

How long has the dragnet has existed? At least seven years, and maybe going back to 2001.

Senate Intelligence Committee chair Dianne Feinstein (D-CA), and vice chair Saxby Chambliss (R-GA), said last week that the NSA has been collecting the records going back to 2006. That’s the same year that USA Today revealed a similar-sounding mass collection of metadata, which the paper said had been taking place since 2001. The relationship between the program we got a glimpse of in the Verizon order and the one revealed by USA Today in 2006 is still not clear: USA Today described a program not authorized by warrants. The program detailed last week does have court approval.

What surveillance powers does the government believe it has under the PATRIOT Act?

That’s classified.

The Verizon court order relies on Section 215 of the PATRIOT Act. That provision allows the FBI to ask the Foreign Intelligence Surveillance Court for a secret order requiring companies, like Verizon, to produce records — “any tangible things” — as part of a “foreign intelligence” or terrorism investigation. As with any law, exactly what the wording means is a matter for courts to decide. But the Foreign Intelligence Surveillance Court’s interpretation of Section 215 is secret.

As Harvard Law Professor Noah Feldman recently wrote, the details of that interpretation matter a lot: “Read narrowly, this language might require that information requested be shown to be important or necessary to the investigation. Read widely, it would include essentially anything even slightly relevant — which is to say, everything.”

In the case of the Verizon order — signed by a judge who sits on the secret court and requiring the company to hand over “all call detail records” — it appears that the court is allowing a broad interpretation of the PATRIOT Act. But we still don’t know the specifics.

Has the NSA’s massive collection of metadata thwarted any terrorist attacks?

It depends on which senator you ask. And evidence that would help settle the matter is, yes, classified.

Sen. Mark Udall (D-CO), told CNN on Sunday, “It’s unclear to me that we’ve developed any intelligence through the metadata program that’s led to the disruption of plots that we could [not] have developed through other data and other intelligence.”

He said he could not elaborate on his case “without further declassification.”

Sen. Feinstein told ABC that the collection of phone records described in the Verizon order had been “used” in the case of would-be New York subway bomber Najibullah Zazi. Later in the interview, Feinstein said she couldn’t disclose more because the information is classified. (It’s worth noting that there’s also evidence that old-fashioned police work helped solve the Zazi case 2014 and that other reports suggest the PRISM program, not the phone records, helped solve the case.)

  • Dominick Vila

    Yes, and hopefully the resources, methods and capabilities used by our intelligence agencies will remain classified and away from the irresponsible media and political opportunists who don’t hesitate to compromise our national security to make a buck.

  • disqus_ivSI3ByGmh

    So this article was a waste of the 5 minutes it took to read it. What it comes down to is nobody knows what information is being collected, who is reviewing it, or who in the elected branches of government actually knows what is going on. Thanks, but we already knew (or didn’t know) that.

  • Johno007

    Anyone else think negative news has taken over the media? Much of the news is about government bickering leaving the public with greater distrust than ever. NSA disclosure means the black hats find other means and the white hats develop other secret techniques. Nobody wins. The cost benefit analysis on what a US life is worth ought to be interesting.

  • Allan Richardson

    The bad guys have probably suspected all along that there were ways to eavesdrop on parts of their conversations. Everyone already knew that a “surveillance state” mentality had been in effect since J. Edgar Hoover, amplified by the need to thwart both Axis and Soviet spies during WWII, and amplified again during the Cold War (for some reason, even Lucille Ball had an FBI file, and when she learned that she was pregnant with Desi Jr. one of the nurses reported it to Hoover, who called to congratulate Desi before Lucy had a chance to tell him). And Hollywood’s ranks were decimated by the irresponsible charges of “communist!” during the McCarthy witch hunts. And there have been spy novels, spy movies, spy TV shows, spy SPOOF shows, and more recently, shows about civilian and military police that portray surveillance methods and systems just a bit beyond what we WANT to believe exist in reality. And nobody has revealed any details that would make a DIFFERENCE to the bad guys; they have only confirmed (if the reports are not exaggerated) what many of us suspected to be true.

    The thing is, most of us (even, I suspect, libertarians) CHEER when these invasions of privacy occur in fiction and catch the bad guys JUST BEFORE the Los Angeles water supply is poisoned by cyanide or a Cuban missile hits Miami (the latter event DID occur in the beginning of one TV show, in which the hero was sent a week back in time to make it NOT happen by stopping the murder of Fidel Castro’s secret boxer son during a Las Vegas exhibition match). A somewhat smaller majority cheer in real life, because the concrete threat of a 9/11 attack is more tangible than the vague possibility that a President, or a lower level bureaucrat, could abuse those tools and thus nullify our freedoms. I am personally leaning just slightly toward wanting to gut the worst parts of the Patriot Act, but not sure if I want to go back to the spy establishment of the 1930’s.

    One thing we need to keep in mind: this did NOT start with a President of the “other” party, regardless of which party the observer supports. It grew gradually over the years, to the point that SOME violation of the Fourth Amendment is almost second nature to us. The other amendments are not immune either: local and federal authorities seize property of criminal SUSPECTS, who then must go to court (and pay a lawyer) with the burden of proof to get the property BACK, even if they are found innocent or the case is dropped, in obvious violation of the “taking” clause of the Fifth Amendment (such seizures are part of the BUDGET of many jurisdictions); and corporations routinely coerce customers into signing away the right to a JURY TRIAL, or even a court hearing, in disputes exceeding $50, in violation of the SPIRIT of the Ninth Amendment, if they want to buy a phone or get cable or internet service (and since there are only a few “competing” companies and they all do the same, the “free market” cannot help us).

    So continue to debate, but do so with understanding. If we want to repeal these surveillance powers, or require more accountability in their use, we must BE AWARE that there is a slightly increased danger of attacks. If we want to keep or expand them in order to be safe, we must BE AWARE that there is the possibility of a future abuse of the powers by a future leader.

  • rustacus21

    After thinking this thru a bit more, I’m troubled most by the fact that our national treasure is/was being spent on a common, simple gang of thugs & social misfits in this way. From the beginning, the error of involving a whole military effort to catch a bunch of common criminals inflated their importance (the twin wars of ’01 & ’03 & their aftermath) above & beyond anything rational. The tactics which discovered & disposed of their leadership didn’t involve any of our vast military resources beyond a small band of experienced combat forces & drones. W/out much effort, these criminals were wiped out, letting us know the 2001-2009 administration wasn’t serious about anything but wasting the nations treasure on expanding bureaucracy for the personal enrichment of the politically & ideologically well connected. & here, we have President Obama holding the bag yet again, by not dismantling an unwieldy program that is, as has been described as clumsy, uncoordinated & dangerously random, allowing the most dangerous (the Patriots day/Boston Marathon bombers) to slip thru, while spying unnecessarily upon the law-abiding & harmless (10’s of millions of American’s & even ‘potentially’ the President himself!). On top of all else, the evil of privatization is at the poisonous core of this program, where the government has no control or oversite of what Booz Allen (the company Ed Snowden blew the whistle on & was fired from on Monday) is actually doing. This is in NO WAY a defense of Snowden (as his accusations have yet to be confirmed), as we don’t yet know who is in charge of all this data? Where does it go, as this is a ‘PRIVATE’ company – NOT a government agency, but a contractor, receiving unaccountable BILLIONS of dollars? & why are so many ‘experts’ rushing to deny the accusations of Snowden, especially as we know nothing of the ‘true’ nature of what this program does OR is capable of? This is yet another of the menacing remnants of the 2001-2009 administration that MUST eventually be completely dismantled, as it should have on January 21, 2009. That the whole nitemare of 2001-2009 was allowed to stay in place is reflected here, as well as the fact that we’re fixated on Immigration Reform & not job creation for the 15 million plus Americans who lost good paying jobs during the 2001-2009 period & have still not YET BEEN ACKNOWLEDGED meaningfully by this administration – an administration still being HELD HOSTAGE by the money monsters still stalking the American civic cultural landscape… as this article also shows…