NSA’s Utah data center under construction. Image: Phil Windley/Flickr
Here’s a seemingly comforting statistic: In all of 2012, the Obama administration went to the secretive Foreign Intelligence Surveillance Court only 200 times to ask for Americans’ “business records” under the USA Patriot Act.
Every year, the Justice Department gives Congress a tally of the classified wiretap orders sought and issued in terrorist and spy cases – it was 1,789 last year. At the same time, it reports the number of demands for “business records” in such cases, issued under Section 215 of the USA Patriot Act. And while the number of such orders has generally grown over the years, it has always managed to stay relatively low. In 2011, it was 205. There were 96 orders in 2010, and only 21 in 2009.
Thanks to the Guardian’s scoop, we now know definitively just how misleading these numbers are. You see, while the feds are required to disclose the number of orders they apply for and receive (almost always the same number, by the way), they aren’t required to say how many people are targeted in each order. So a single order issued to Verizon Business Solutions in April covered metadata for every phone call made by every customer. That’s from one order out of what will probably be about 200 reported in next year’s numbers.
The public numbers are the one bit of accountability around the surveillance court, and the Justice Department used them to misdirect the public away from a massive domestic NSA spying operation that, as several Senators approvingly noted today, has been running for seven years.
In 2011, Acting Assistant Attorney General Todd Hinnen relied on the same misleading numbers when he told the House Judiciary Committee that “on average, we seek and obtain section 215 orders less than 40 times per year.” Congressman James Sensenbrenner rightly took Hinnen to task today for juking the stats. “The Department’s testimony left the Committee with the impression that the Administration was using the business records provision sparingly and for specific materials,” Sensenbrenner writes (.pdf). “The recently released FISA order, however, could not have been drafted more broadly.”
Leaks reveal the truth in small slices. In 2006, a technician at an AT&T switching center in San Francisco followed some fiber optic splices straight into an NSA wiretapping program parked on the backbones of the internet. Now someone with access to a single Patriot Act order served on Verizon Business Solutions leaked it to the Guardian, so today’s news is that the FBI and the NSA are engaged in wholesale spying on Verizon customers. But the whole pie is certainly bigger than that.
There are hints of broader surveillance in the Verizon order. In addition to call records, the order demands cell phone data, like customers’ IMSI (International Mobile Subscriber Identity) number and another identifier that reveals the make and model of the phone. The mobile data is a non sequitur in that particular order, because Verizon Business Services isn’t a mobile carrier; it’s the long distance and landline business Verizon acquired as MCI in 2005.
The obvious conclusion is that the Foreign Intelligence Surveillance Court uses the same catchall boilerplate order over and over again, just changing the company name and the date. The court that’s supposed to be protecting Americans from abusive domestic surveillance is not only failing in that duty, it’s also lazy.
Thanks to that laziness, we can fairly surmise that the orders are routine, and they are served on other carriers. Probably all of them. And probably continuously, renewed every three months for the last seven years.
That means the Administration has a database of every call to suicide prevention, every tip to a government fraud whistleblowing hotline, every call to the “find a meeting” number for every Alcoholics Anonymous chapter. And all it told us was that it uses the USA Patriot Act every now and then.
- Also Revealed by Verizon Leak: How the NSA and FBI Lie With Numbers (wired.com)
- Report: NSA seizing Verizon phone records (newsday.com)
- NSA collecting phone records for millions of Verizon customers, report says (foxnews.com)