FISC Orders Verizon to Produce Call Data for Everyone Every Day
June 6, 2013. The Guardian, a newspaper and news publishing business based in the United Kingdom, published an article by Glenn Greenwald titled "NSA collecting phone records of millions daily, court order reveals".
The Guardian also published a copy of a document [ PDF | HTML] titled "Secondary Order" issued by the U.S. federal government entity titled "Foreign Intelligence Surveillance Court", or "FISC".
The Guardian article adds that it "approached the National Security Agency, the White House and the Department of Justice for comment in advance of publication on Wednesday. All declined. The agencies were also offered the opportunity to raise specific security concerns regarding the publication of the court order."
The Order. The order directs Verizon to produce on a "daily basis" 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".
The only call records not covered by this order are "telephony metadata for communications wholly originating and terminating in foreign countries". However, it would be the case that the FBI and NSA are obtaining such records by other means.
That is, anyone who makes a call, or receives a call, that is initiated or terminated on Verizon's network, is subjected to FBI and NSA surveillance. Moreover, the information being collected and stored by the government includes "routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call". (Parentheses in original.)
This order does not authorize access to the content of calls. It is not also a wiretap order.
The order states that it was issued pursuant to the authority contained in 50 U.S.C. § 1861. This is the section of the Foreign Intelligence Surveillance Act (FISA) that pertains to "Access to certain business records for foreign intelligence and international terrorism investigations".
The controversial Section 215 of the 2001 USA PATRIOT ACT amended this section to enable the government to obtain records from phone companies, and others, pursuant to a very low standard -- mere relevance to an investigation. However, the just disclosed order, directed at the phone records of all persons, arguably fails to meet even this most minimal standard.
The Guardian did not also publish the application(s) of the FBI and/or NSA for this order. Nor does Roger Vinson's order explain how everybody's phone call data is relevant an authorized investigation into terrorism, intelligence matters or the activities of foreign powers.
See also, TLJ's edition of the order, in HTML, with hyperlinks and notes.
Section 215. Section 1861 of Title 50, the authority for issuance of this order, has a storied history. It is also known as Section 501 of the FISA. The 2001 surveillance act (Section II of the USA PATRIOT Act) amended Section 1861/501 in its Section 215. And since, there have been contentious debates over, and amendments to, this controversial provision. These debates have usually been conducted with reference to Section 215.
See also, HR 3162, 107th Congress, titled "USA PATRIOT Act", signed October 26, 2001, Public Law 107-56.
This 1861/501/215 authority enables the FBI to obtain from a judge or magistrate an order requiring the production business records, including phone company, ISP, library, and bookseller records.
Moreover, while the FISC body bears very few attributes of an Article III court, the statute counts the FISC as a court.
This section 1861 further provides that if the government submits an application to the court that states that there are "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation", then the "judge shall enter an ex parte order as requested". This is a very low standard. The judge is left with almost no discretion.
Precisely, section 1851 requires that such application "shall include ... a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to -- (i) a foreign power or an agent of a foreign power; (ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or (iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation".
The referenced subsection (a)(2) merely requires that the investigation be conducted pursuant to "guidelines approved by the Attorney General" and that it "not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution".
It should also be noted that Section 1851 also requires that the FBI's application contain an "enumeration of the minimization procedures adopted by the Attorney General". However, Roger Vinson's order does not reference minimization.
Section 1861 also grants broad immunity from liability for anyone, such as Verizon, who complies with a Section 1861 order.
National Security Letters. Section 1861/501/215 is just one means for the government to obtain records from phone companies.
Another method is the issuance of a National Security Letter (NSL). The relevant statute is codified at 18 U.S.C.§ 2709. This section provides that "A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation".
Section 2709 also requires that the FBI must certify to the service provider that the request is "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution". That is, Section 2709 parallels the Section 1861 standard.
The FBI has often preferred use of the NSL to the Section 215 order. NSLs can reach companies like Verizon. They can be used to obtain call records. Moreover, since the NSL is essentially an administrative subpoena, it requires no judicial approval.
Section 215 sets a very low standard for judicial approval, but it nevertheless requires judicial approval, which NSLs do not.
One might speculate that the reason that the FBI and NSA obtained a Section 215 order from the FISC was that Verizon refused to comply with an NSL directed at any everyone who makes or receives phone calls. That is, Verizon might have insisted that such a broad NSL did not satisfy the relevance requirement of Section 2709.
FBI History of Abusive Access to Phone Records. The Department of Justice's (DOJ) Office of the Inspector General (OIG) released a series of lengthy reports in 2007, 2008 and 2010.
The DOJ/OIG found, among other things, improper conduct by the FBI in obtaining phone records. Although, those reports found most of the misconduct in the use of National Security Letters (NSLs) and exigent letters (which have no statutory basis).
The DOJ/OIG surveillance reports are as follows:
The General Counsel of the FBI at the time of surveillance misconduct disclosed by the DOJ/OIG reports was Valerie Caproni. She has not been indicted. Rather, she has been nominated for a seat on the U.S. District Court (SDNY). See, story titled "Obama Nominates Caproni to District Court" in TLJ Daily E-Mail Alert No. 2,474, November 19, 2012
Her nomination is on the agenda for the Senate Judiciary Committee's (SJC) executive business meeting on Thursday, June 6. She is sailing through the confirmation process. Once confirmed, because of her background, she will become a likely candidate for appointment by the Chief Justice of the United States to the FISC. She may soon be issuing secret blanket Section 215 orders to phone companies and internet service providers.
(Published in TLJ Daily E-Mail Alert No. 2,571, June 5, 2013.)