So is the government listening in on all our phone calls? Well, possibly.
Americans woke up this morning (June 6) to the news that a unit of Verizon may be, under a secret court order, handing over information about millions of telephone calls to the National Security Agency every day.
The basis for the new allegations is a document, purporting to be a copy of the secret court order, obtained by American muckraking journalist Glenn Greenwald, who writes for the British newspaper the Guardian.
Greenwald's scoop was posted to the Guardian website around midnight London time, which was early evening yesterday in New York.
There's bound to be a lot of confusion about the allegations made in the story. We'll try to answer some questions here.
UPDATE: Later today, the Washington Post and the Guardian published substantial evidence that the FBI and NSA have an Internet surveillance program, called PRISM, that taps "directly into the central servers" of AOL, Apple, Facebook, Google, Microsoft, Skype, Yahoo and YouTube. (Microsoft owns Skype and Google owns YouTube.)
The evidence was a PowerPoint slideshow that both newspapers said was for internal NSA use. Apple and Google denied being part of the program.
What the heck is going on?
The government seems to be getting daily information about calls made by using millions of Verizon telephone numbers, but not the contents of the calls themselves.
Most people won't like that, but there are various legal justifications for doing so.
What sort of information about phone calls is being handed over?
The government is getting call logs, which contain the " metadata " of each call made: the dialing number, the receiving number, the duration of the call, the data and time of the call, the rough physical location of the dialing and receiving numbers and various bits of routing information.
The logs would not contain recordings of the actual calls, or even what the calls are about. Nor would they indicate the names of the persons placing or receiving the calls, although such information could easily be determined otherwise.
Is the government recording the calls?
Not under this purported secret court order, which the Guardian has posted in its entirety.
The order's simply demanding that call logs — numbers dialed, time and dates of calls, durations of calls and so on — be handed over to the NSA "on an ongoing daily basis" for a period of 90 days.
Why know the metadata about a phone call, but not the contents of the call itself?
Metadata would show, for example, that Suspect A called Suspect B right before Suspect A planted a bomb, for example. It’s the same sort of information that the FBI gets from cellphone towers about cellular calls, although this specific court order doesn’t involve cellular calls.
Is my phone part of this?
It could be, if you work in an office building. The secret court order, if it is real, applies only to landlines controlled by Verizon Business Network Services, which amounts to about 10 million business telephone numbers in large- and medium-size American companies.
Calls originating from private landlines and cellular phones are not covered in this court order.
So it's only landlines? That seems dumb. So many people use cellphones exclusively.
Yes, but the all-encompassing language of the order — it asks for cellphone metadata that landlines don't have — and the fact that the judge seems to have literally rubber-stamped the order indicates that it may be only one of dozens, maybe hundreds, of secret court orders.
Is this secret court order real?
The government has neither confirmed nor denied it is. But two people familiar with such documents told the Washington Post today that it looked genuine.
Are any other carriers besides Verizon affected?
No cellular carriers, including Verizon Wireless, are affected by this court order at all. Verizon Wireless is a separate company from Verizon. The court order applies only Verizon Business Network Services, whose customers are corporate office facilities.
Could cellphones be part of this eventually?
Yes. The language of the order is so broad that it includes demands for data pertaining only to cellphones, such as SIM card and handset ID numbers, which landlines don't have.
The implication is that this order uses boilerplate text that is only slightly altered for each telecommunications company receiving such orders.
How secret is the court order?
It's labeled "TOP SECRET//SI//NOFORN." "TOP SECRET" is the highest level of secrecy, although more than 800,000 individuals in the U.S. are thought to have some form of top-secret clearance.
"SI" stands for "Special Intelligence," indicating that it pertains to interception of communications and can be shown only to individuals who have that clearance as well. "NOFORN" means that no foreign nationals may see the document.
Interestingly, part of the order applies to keeping itself secret.
"It is further ordered," the document says, "that no person shall disclose to any other person that the FBI or NSA has sought or obtained tangible things under this order," except to people specially cleared to know about it.
If the call logs are being handed to the NSA, why is the FBI involved?
Only the FBI director can request such court orders, because the orders involve surveillance of people within the United States. The NSA is a branch of the military and technically can surveil only foreign communications.
What's this secret court that issued the order?
It's the Foreign Intelligence Surveillance Court, which must approve all surveillance of persons, including American citizens, thought to be working for "foreign powers" within the United States.
The underlying law, the Foreign Intelligence Surveillance Act of 1978, is how the government lets the NSA and other external-facing intelligence agencies conduct surveillance on U.S. soil.
Amendments to the act in 2001 expanded the definition of "foreign powers" to involve foreign terrorist groups like al-Qaida.
Who leaked this?
We don't know, but any government official leaking the order would face years of prison time if caught. It's less clear what sort of penalties a private citizen might face.
How much trouble are Glenn Greenwald and the Guardian in?
They will be under heavy legal pressure to divulge Greenwald's source. The Obama administration has been relentless in its pursuit of leakers.
But the Guardian is based in Britain, and Greenwald, an American, is at this moment in Hong Kong, out of reach of U.S. jurisdiction.
How long has this surveillance been going on?
The alleged secret court order applies for only 90 days, from April 25 to July 19 (which is actually 88 days inclusive). But an unnamed legal expert told the Washington Post that the original order was issued in 2006 and has been routinely renewed every 90 days since.
Has this happened before?
Yes, a USA Today piece revealed a similar program in 2006, during President George W. Bush's second term. That story, based on anonymous sources, said that Verizon, AT&T and BellSouth (since acquired by AT&T) were voluntarily providing the NSA with millions of call logs.
It also said another landline provider, Qwest (since acquired by CenturyLink), refused to hand over logs without a warrant, and that the NSA had rejected Qwest's insistence that the matter go before the Foreign Intelligence Surveillance Court.
In 2007, former Qwest CEO Joseph Nacchio was convicted on 19 counts of insider stock trading. During an appeal, Nacchio's lawyers claimed the charges were retaliation for Nacchio's refusal to go along with the warrantless surveillance program while he ran Qwest.
This is the first solid evidence that the call-log handovers had continued into the Obama presidency.
Why would the government be doing this?
A top member of President Barack Obama's administration anonymously told the Washington Post, the Associated Press, the New York Times and Reuters this morning that such mass harvesting of call logs "has been a critical tool in protecting the nation from terrorist threats to the United States."
"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," the unnamed official said, according to the Times.
Is this unconstitutional?
The government doesn't think so. Under the "third party doctrine," private material that is handed to a third party — in this case, Verizon — is not subject to the Fourth Amendment, and hence it's not necessary for the government to get a warrant to see it.
What's the legal justification for this?
Section 215 of the USA-PATRIOT Act of 2001 lets the FBI director ask for court orders for any commercial materials — "books, records, papers, documents and other items" — pertaining to terrorism or intelligence investigations.
However, it's hard to see how each and every telephone call made by Verizon business customers could pertain to a specific investigation.
For the past two years, two Democratic members of the Senate Intelligence Committee, Sen. Ron Wyden of Washington and Sen. Mark Udall of Colorado, have warned that Section 215 is being used by the government to justify secret surveillance of American citizens.
"When the American people find out how their government has secretly interpreted the PATRIOT Act, they will be stunned and they will be angry," Wyden said in floor debate in May 2011.
As sworn members of the Intelligence Committee, Wyden and Udall cannot divulge what they know.
But Greenwald today quoted Udall regarding the new revelations: "This sort of widescale surveillance should concern all of us and is the kind of government overreach I've said Americans would find shocking."
So if the government doesn't need a warrant, then why issue a secret court order?
The court order may be there to shield Verizon from lawsuits by its customers. "The government made me do it" is a strong defense against accusations that it wrongly disclosed private customer information.
What else might the government be up to?
We can only guess. Last month, a former FBI agent told CNN that telephone calls were "being captured as we speak whether we know it or like it or not," but recording each and every American phone call would require a staggering amount of storage space.
In 2006, a retired AT&T technician revealed that the company, on behalf of the NSA, had three years earlier installed wiretapping equipment in a secret room in a major telephone-network switching facility in San Francisco. The technician said he believed that similar installations existed across the country.
Former NSA officials have hinted that the agency may be blindly archiving every email message sent in the U.S. Law enforcement would still require warrants to read the contents of those emails (or at least emails less than six months old ), but at least they'd be easily accessed.
The NSA hasn't fully explained what will go on at the Utah Data Center, a massive data-storage facility being built near Salt Lake City. If the agency were going to archive billions of email messages, that'd be the place to do it.
How does the government decide whose phone records to collect?
Supposedly, each set of phone records needs to be linked to a specific case.
For example, the call logs for Associated Press telephones recently sought by the FBI were linked to the leak of a joint American-British-Saudi intelligence operation that placed a mole within al-Qaida.
But daily call logs of 10 million landlines seems more like mass harvesting.
What is the government doing with the information?
We don't know. In 2006, when the same thing was discovered to be happening under the Bush administration, intelligence and law enforcement officials defended the practice as essential to detecting patterns of communication among possible terrorists.
Is the government collecting text messages?
Not under this court order, which only applies to commercial landlines. But text messages sent from mobile phones are easy to collect and to archive.
Why was there backlash from the left when Bush proposed similar measures, but the backlash for this event has come primarily from the right? Is there anything beyond just "my candidate is/isn't in office?"
Greenwald is in fact on the left, and considers Obama scarcely better than Bush.
On the right, libertarians, even those on Fox News, were pretty loud in their outrage about government surveillance during the Bush years.
Beyond that, partisans will use any excuse to bash the other side.
Is this only Verizon-to-Verizon calls? If I have Sprint but call someone with Verizon, does the NSA get the same information about me and that call as they would have if I had Verizon?
This court order doesn't apply to cellular calls, but if it did, the government would probably get just as much information about out-of-network calls as it did about in-network calls.
Did Verizon rebuff an initial NSA request, resulting in the court order? Or does the NSA just rely on court orders as its first option?
This court order probably exists to keep the entire process legally airtight. Verizon could just hand over the logs without a court order, but it's better to show that it was compelled to.
Why was this order issued to Verizon, as opposed to other providers? Or is Verizon just the only one that we know about?
We don't know for certain, but since this court order pertains only to a specific landline unit of Verizon, it's possible that all the telecommunications companies get these court orders every 90 days, and this order just happened to be leaked.
If I buy a "burner" phone, can I avoid being tracked?
Nope. Even if the government can't get your name from whoever sold you the burner phone, it can probably figure out your identity by seeing which other numbers your burner called and how frequently it called them.
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