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The Guardian newspaper revealed the second largest phone company in the U.S., Verizon, is handing over millions of private phone records to government agencies. Authorized by the Patriot Act, the order came from a secret court overseeing foreign and domestic surveillance, the Foreign Intelligence Surveillance Court. Experts say this is the tip of the iceberg, and the government collects far more information on American citizens than is revealed. We explore the legal, political and privacy issues around domestic surveillance.
- Stephen Vladeck Professor of Law and Associate Dean for Scholarship, American University Washington College of Law
- James Bamford Author, "The Shadow Factory: The NSA from 9/11 to the Eavesdropping on America"
Authorizing Domestic Surveillance
Many Americans were shocked by the Guardian’s recent revelations that the N.S.A. and F.B.I. are secretly poring over millions of private phone records. But Philip Bump, from the Atlantic Wire, reminds us that Congress has consistently voted to expand the government’s authority to conduct domestic surveillance. Bump compares the voting records of members of Congress. Below, we took his database and ranked the skepticism of Maryland and Virginia congress members (as measured by number of “no” votes”):
The amended data-set is available here
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, U.S. drone strike policy and how it impacts life and politics in Pakistan. But first, when the Patriot Act became law over a decade ago concerns were raised about it opening the door for access to patrons' library records. It turns out it can be used to tap into your phone records too.
MR. KOJO NNAMDIThis April Verizon began to turn over reams of metadata gathered on millions of American's phone calls to the government. No, they're not listening in on your conversations but they are evidently compiling information on who is calling whom, how long they talk and where they're calling each other from, raising lots of questions about what exactly the government is looking for and what kind of legal framework allows for this in the first place.
MR. KOJO NNAMDIJoining us both by phone to help us sort this out is James Bamford. He is the author of "The Shadow Factory: The NSA From 9/11 to the Eavesdropping on America," along with two other books on the agency. James Bamford, thank you for joining us.
MR. JAMES BAMFORDMy pleasure, Kojo.
NNAMDIAnd joining us by phone from Japan is Stephen Vladeck. He is a professor of law and associate dean for scholarship at American University Washington College of Law. Stephen Vladeck, thank you for joining us.
MR. STEPHEN VLADECKThanks for having me, Kojo.
NNAMDIStephen I'd like to read a little bit from the order itself here. It says according to the Guardian report that the court expressly bars Verizon from disclosing to the public either the existence of the FBI's request for its customer's records or the court order itself. The order signed by Judge Rodger Vincent compels Verizon to produce to the NSA electronic copies of quoting here "all call details or telephony metadata created by Verizon for communications between the United States and abroad or wholly within the United States including local telephone calls."
NNAMDIStephen, this court order comes from the Foreign Intelligence Surveillance Court and was granted back in April. What exactly does that particular do and how common is an order like this one?
VLADECKWell, the Foreign Intelligence Surveillance Court is the court that's actually been around since 1978 since congress and the Foreign Intelligence Surveillance Act established it. And what the court basically does is it issues orders like these. It exists for basically two purposes. To issue these kinds of subpoenas to companies like Verizon to other businesses, and to issue what are effectively search warrants in cases where the government has more than individualized show in, that the target of surveillance is someone who's believed to be an agent of a foreign power, an agent of a terrorist group.
VLADECKAnd, Kojo, the whole idea is that unlike our ordinary federal courts, the FISA Court can operate in secrecy so that the subjects of the surveillance, the people whose information is being gathered don't then become privy to the information. They don't get let in to the fact that we are surveilling them. With regard to how common these are -- and I think that's one of the big unanswered questions -- we have aggregate statistics on how many warrants and how many of these kinds of orders the FISA Court issues in any given year. But the data is not broken out at a more sort of granular level, at least not publicly.
VLADECKSo, you know, we don't know how many of these orders go to phone companies like Verizon with such an open-ended scope as opposed to maybe a specific request to say a hardware store in Tacoma Park to find out who has bought particular kinds of paint thinner or other potentially weaponizable products in the last six months. And I think that distinction is a critical one in understanding how broadly the authority sweeps.
NNAMDI800-433-8850 is our number. Are you concerned that your phone records are being collected by the government? Give us a call, 800-433-8850, or do you understand why? You can also send email to firstname.lastname@example.org or send us a Tweet at kojoshow. James Bamford, this is not the first time that large amounts of data on America's phone use has come to light. What, if anything, strikes you as different or as unusual about this latest revelation?
BAMFORDWell, a number of things, Kojo. One of them is that we kind of expected this during the Bush Administration. He had a whole program of warrantless eavesdropping and eavesdropped on a great deal of information, people's phone calls, email and so forth until it was revealed by the New York Times. So I think a lot of people assumed that once that came out and once the government said that they were obeying the law from then on, that this had relatively stopped.
BAMFORDSo this comes, I think, as a surprise to a lot of people that the Obama Administration is being basically more aggressive than the Bush Administration in using NSA. There weren't really any allegations that the Bush Administration was focusing on domestic or local phone calls during the Bush years but the Obama Administration seems to be focusing not only on international but also domestic metadata.
BAMFORDWhat we don't know is whether there are other orders out there for actual conversations. What these orders are for are just the metadata, the externals of the phone call, who made it, who called whom, where were they when they made the call, how long did it last? And with that information we can do a great deal of data mining to show chains of who's talking to whom and so forth. So the big question is, what else is there? NSA's like a huge -- it's basically like an iceberg and you only see a tiny bit of it above this huge ocean of secrecy. And so the question is what else is below that surface level?
NNAMDISince you mentioned metadata, that was also the term used today by Senators Dianne Feinstein and Saxby Chambliss, she a Democrat of California, he a Republican of Georgia. They lead the Senate Intelligence Committee. They talked with reporters at a news conference to discuss the collection by the NSA of these Verizon telephone records, both defending the program. Pointing out that this is mostly what they call, and what James Bamford just referred to as metadata information about phone calls. Not the content of the phone calls themselves.
NNAMDIHere is an excerpt of what they said.
SENATOR DIANNE FEINSTEINIt's to ferret this out before it happens. It's called protecting America. I think people want the homeland kept safe to the extent we can. We understand -- I understand privacy. Senator Chambliss understands privacy. We want to protect people's private rights. And that's why this is carefully done. That why it is a federal court of 11 judges who sit 24/7 who reviews these requests and then either approves them or denies them.
SENATOR SAXBY CHAMBLISSAnd it's what we call minimized. All of these numbers are basically ferreted out by computer. But if there's a number that matches a terrorist number that has been dialed by a U.S. number or dialed from a terrorist to a U.S. number, then that may be flagged.
NNAMDIAnother way of saying, James Bamford, nothing to see here, move on, please. But you see as significant about this the attitude of the American public when it comes to privacy.
BAMFORDWell, and I think the American public gets sort of immune to these revelations. The more they come the less dramatic they seem and the less you get of a public protest. But it really is serious when the government does these things and the public has no knowledge about it. The other problem is, this is not really helpful when it comes to finding terrorists. What they're doing is they're building the haystack bigger and bigger and bigger, which makes it very much more difficult to find that needle.
BAMFORDEvery time there's a terrorist incident they want more data when it was a problem of having too much data in the first place. So I think in all these levels this procedure is a problem. It's a problem on the privacy end and it's also a problem, I think, on drowning the intelligence community in too much useless information.
NNAMDIIn case you're just joining us, that's James Bamford. He is author of the book "The Shadow Factory: The NSA FROM 9/11 to the Eavesdropping on America," along with two other books on the agency. He joins us by phone from Washington, D.C. Joining us by phone from Kyoto, Japan is Stephen Vladeck. He is a professor of law and associate dean for scholarship at American University Washington College of Law. We're taking your calls at 800-433-8850. What information do you think the government should be allowed to gather in keeping the American public safe, 800-433-8850?
NNAMDIStephen Vladeck, what's the legal framework that supports an order like this? And has it changed significantly since the Obama Administration took office?
VLADECKWell Kojo, the framework is actually a complicated series of statutes that are generally referred to as all being part of the Foreign Intelligence Surveillance Act. What's really intriguing and in some ways surprising about yesterday's story, is I don't think it was publically known before yesterday that the government understood the general provision that allows the government to obtain business records to encompass phone records.
VLADECKThat for some reason -- indeed for reasons I think are actually fairly straight forward -- we had historically understood business records to mean, you know, we walk into a store, we buy something, records a business maintains of their own operations. And the change here is now we're talking about records a business happens to have about transactions between two wholly private parties.
VLADECKThere's already power under various statutes for the government to intercept that data. They're something called pen registers which allow the government to obtain information on who's calling whom and from where. But the standard for obtaining a pen register under the same statute is much higher. And so I think what's alarming about this development is the government relying on this broader and more deferential authority to go after records that used to have to show more to get.
VLADECKAnd, Kojo, you asked the right question. Is this new in the Obama Administration? We don't know. You know, we don't know how long before this order the administration had taken the position that business records under this provision of the Patriot Act include these kinds of phone records. I will say one thing though. I mean, it's important to keep in mind, you know, the Bush Administration conducted similar surveillance without any statutory authorization.
VLADECKSo, you know, what's different here is not necessarily the actual conduct of the intelligence agencies but the role of congress here. Congress has now arguably authorized this, at least based on the arguments we've seen yesterday.
NNAMDIOn to the telephones. Here is Steve in Washington, D.C. Steve, you're on the air. Go ahead, please.
STEVEThank you. I'm hearing this and the revelations of the AP story, and as just a citizen I think to myself, if the attorney general of our country has also been implicated in the AP, looking at records, unauthorized taps, where do we go? Who do we look to? I feel like I'm listening to George Orwell's 1984 that I read in high school, thinking that was describing Russia when this is starting to -- our country's starting to sound like an Orwellian country more and more every day...
NNAMDII'll ask the question to James Bamford. Who do we look to? Where do we go? Our caller Steve apparently doesn't trust the attorney general.
BAMFORDWell, I think he has good reason to because the Obama Administration hasn't been focused on privacy. That's the -- it seems to be the last of their concerns. They're focused on keeping secrets from the American public by having the largest number of prosecutions -- leak prosecutions in U.S. history. Three times more than all the rest of the presidents put together. So the idea is the Obama Administration is on steroids when it comes to trying to keep information from the public. The other problem...
NNAMDIOh, but same question that I asked Stephen earlier to you, James, do you have any idea whether this order has changed significantly since the Obama Administration took office?
BAMFORDWell, I think it has. I don't -- the -- under the Bush Administration they were just doing it regardless of what the law was. They didn't really care about the law. What happened was after the revelations and after the Bush Administration they created this thing called the Foreign Intelligence Surveillance Amendments Act, which changed it somewhat. Plus it's this new legal theory, that Stephen mentioned, of using -- going after these documents as business records and so forth. So there's been a number of changes.
BAMFORDBut the other problem that the caller brought up was oversight. And as you can see from both the Democrat and the Republican at the press conference, they don't seem to be bothered by this, even though a lot of members of the American public seem to be bothered by it. And what had started out as congressional committees to protect the American public from the intelligence community has basically turned into cheering galleries to serve a cheering crowd for the intelligence community, which is completely opposite from the way they were when they were originally created.
NNAMDIHere is Carlos in Silver Spring, Md. Carlos, your turn.
CARLOSHi, Kojo. My question is, if this program, as they say, was supposed to protect the people, why are they keeping it secret in the first place? That's one question. My second question is, what is the difference between the laws now and the laws that were used by the old Soviet Union where they snoop and sneak on everything. How you going to be free if you're being snoop -- every information about you the government know. I mean, how do feel free in a country like that.
NNAMDIStephen Vladeck, I'll put this to you. Why the need to keep this information secret?
VLADECKWell, I think that's a great question. I mean, I think part of the answer has to be, whether we like it or not, that the government is able to obtain more information the less that the, you know, putative bad guys know what we're doing and know how the government's obtaining information. And so I think, you know, the government would say, you know, the less that the potential targets of the surveillance know both that we're conducting the surveillance and what our capabilities are with regard to how we conduct the surveillance, you know, the more effective that surveillance will be.
VLADECKThe problem, Kojo, is that what this all really turns on, you know, is something James mentioned earlier. It's the idea of, you know, minimization. You know, is there going to be -- are there going to be adequate steps taken by the government to keep false positives out of the system, to find the calls that are about terrorist plots and to leave out the calls where I'm, you know, setting up my next meeting with my, you know, hypothetical drug supplier.
VLADECKAnd I think that's the problem that the secrecy really, really drives home. Without more clarity about how this program works, about what the government even thinks the law allows them to do, we cannot even begin to understand which of our records, which of our communications, which of our private interactions with each other are actually part of a large government database.
NNAMDICarlos, thank you very much for your call. Final question for you, James Bamford. There's a new NSA facility under construction in Utah. Tell us about that and its purpose.
BAMFORDWell, I wrote a cover story for Wired magazine on this data center in Bluffdale, Utah. I wrote it last year and it said due for completion this coming September. And what it is is a -- it's a million square feet to hold virtually all the information that NSA intercepts around the world, telephone calls, email, Tweets, whatever kind of communications, Google searches and so forth.
BAMFORDIt's essential repository where they will store all this information. And then it'll be used as a cloud -- a digital cloud so that the NSA from its headquarters in Maryland will be able to access the information in there through fiber optic cables and so forth. And other locations -- NSA locations will be able to access it. So it's a mammoth -- basically it's just a mammoth warehouse to store enormous amounts of private communications including possibly these records we're talking about here.
NNAMDIJames Bamford is the author of the book "The Shadow Factory: The NSA From 9/11 to the Eavesdropping on America," along with two other books on the agency. James Bamford, thank you for joining us.
BAMFORDMy pleasure, Kojo.
NNAMDIStephen Vladeck is a professor of law and the associate dean for scholarship at American University's Washington College of Law. Stephen Vladeck, thank you for staying up and thank you for joining us.
VLADECKThank you, Kojo
NNAMDIWe're going to take a short break. When we come back, how America's drone strike policy is affecting life and politics in Pakistan. I'm Kojo Nnamdi.
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