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Surveillance State Secrecy & the Top Secret Court Order to Hand Over Verizon Call Data to NSA

A court order that was classified as top secret indicates Verizon was ordered by a US secret surveillance court to provide call data of millions of communications of Americans on an “ongoing, daily basis” to the National Security Agency (NSA) from April 25 to July 19.

The order authorized by the Foreign Intelligence Surveillance Court was published by The Guardian and columnist, Glenn Greenwald, wrote about the order for the media organization, concluding that it showed for “the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.”

What numerous people covering this order have pointed out is that it exploits a section of the Patriot Act, which President Barack Obama and Congress reauthorized, known as Section 215. According to the American Civil Liberties Union, this provision “authorizes the government to seek secret court orders for the production of ‘any tangible thing’ relevant to a foreign-intelligence or terrorism investigation.” There is tremendous secrecy around this provision, including the facts that companies receiving such orders are prohibited from disclosing them and the government is secretly interpreting the authority that it grants for the conducting of broad surveillance.

Marc Ambinder of The Week reported the National Security Council put together talking points for responding to reaction to the court order. The first talking point is, “The article discusses what purports to be an order issued by the Foreign Intelligence Surveillance Court under a provision of the Foreign Intelligence Surveillance Act that authorizes the production of business records. Orders of the FISA Court are classified.”

As with the disclosures of previously secret US government documents by WikiLeaks, the administration intends to cast this aspersion that the posted document may or may not actually be a copy of an actual top secret court order issued by the secret surveillance court. The administration also seeks to deflect all the outrage by reminding the press and public that orders like this are supposed to be secret. It was not supposed to be public so the government will scold those in the press and seek out the source in retaliation for trying to force transparency and discussion of surveillance practices and legal authorities the Obama administration does not want anyone to challenge.

If one looks at the bottom of the order, a declassification date can be seen. It is 2038. That means it would have been twenty-five years from now that Americans might have learned the government was sweeping up “telephony metadata” or call data from this period in what appears to be a flagrantly non-targeted fashion.

Another one of the talking points the administration will fervently repeat that the information collected “has been a critical tool in protecting the nation from terrorist threats to the United States, as 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.” It is a claim that the administration does not believe needs to be publicly confirmed.

That is likely because the vacuuming up of data of Americans is preferable as it is easier than actually going to the trouble of targeting surveillance to actual specific individuals, who may pose threats. National security agencies have consciously chosen to drown agents or officers in millions upon millions of collected data rather than focus the collection so it might be possible to guarantee no threats get by the government.

All throughout the day, the Obama administration will diminish the significance of this top secret court order by saying it did not collect the content of phone calls and only “telephony metadata.”

Julian Sanchez of CATO has explained how merely collecting metadata can make it possible for the government to do geolocation tracking and get around “the need to obtain a full Fourth Amendment warrant based on probable cause.”

…the Department of Justice has developed a novel legal theory, known as the “hybrid theory,” according to which law enforcement may do some types of geolocation tracking of suspects’ cellular phones without obtaining a full-blown probable cause warrant. The “hybrid theory” involves fusing two very different types of surveillance authority. “Pen registers” allow the monitoring, in real time, of the communications “metadata” from phones or other communications devices (phone numbers dialed, IP addresses connected to). For cellular phones, that “metadata” would often make it possible to pinpoint at least approximately—and, increasingly, with a good deal of precision, especially in urban areas—the location of the user. Federal law, however, prohibits carriers from disclosing location information “solely” pursuant to a pen register order…

Verizon and all telecommunications companies are gagged from publicly disclosing that they are under these kind of secret orders. Such prohibition has been challenged in relation to another surveillance power—the issuing of national security letters (NSLs) by the FBI to put together “vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of email addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website.”

A district court in California found in March of this year that nondisclosure or gag provisions related to NSLs “significantly infringed upon free speech.” It prevented those who received them from joining in any public debate. That is also the effect of gags included in orders issued under Section 215—companies receiving them cannot publicly challenge being required to comply if they constitute clear abuses of power.

Furthermore, Section 215 essentially is a secret law, and, despite the protests of senators like Sens. Ron Wyden and Mark Udall, the Obama administration has been perfectly comfortable with keeping Americans in the dark.

A letter from Udall and Wyden sent to Attorney General Eric Holder on September 21, 2011, highlighted how the NSA general counsel had testified that “significant interpretations of Section 215 of the Patriot Act are contained in classified opinions of the Foreign Intelligence Surveillance Court and these opinions—and the legal interpretations they contain—continue to be kept secret.” The senators added, “In our judgment, when the government relies on significant interpretations of public statutes that are kept secret from the American public, the government is effectively relying on secret law.”

Udall and Wyden noted there is little publicly available information about how the government understands its authority to conduct surveillance. Little has changed since September 2011 so it is fair to presume that most Americans do not understand the extent to which the government has claimed extensive authority for surveillance that previously would have been considered illegitimate or outright illegal.

The ACLU filed a Freedom of Information Act (FOIA) lawsuit in May 2011 for information on Section 215. The group has been seeking “legal opinions or memoranda concerning or interpreting Section 215”; “guidelines for government personnel regarding the use of Section 215”; “reports provided to Congress by the FBI or [Justice Department] concerning or memorializing the executive branch’s interpretation or use of Section 215”; “rulings, opinions, or memoranda of the FISC concerning or interpreting Section 215; and legal opinions or memoranda concerning or interpreting Section 215.”

The government has acknowledged it has records on how it legally interprets this provision but has claimed exemptions under FOIA to continue to maintain secret interpretations of the law.

A few senators including Udall and Wyden have pushed for secret rulings by the Foreign Intelligence Surveillance Court to be released. As the FISA Amendments Act that legalized the dragnet surveillance of Americans’ communications was being reauthorized for five more years by Congress, Wyden protested, “The public has absolutely no idea what the court is actually saying. What it means is the country is in fact developing a secret body of law so Americans have no way of finding out how their laws and Constitution are being interpreted.”

Wyden tried to pass an amendment that would have required the secret surveillance court’s rulings to be made public in some form, but it failed.

Such surveillance may be entirely legal and defenders of Obama may attempt to diminish outrage by pointing out that Congress reauthorized the Patriot Act, which had this section which government has secretly interpreted. But, it is legal in the same way that the administration’s global assassination policy to target and kill individuals abroad in countries where the US has not declared war is legal because both involve the claiming of executive power that rests upon a body of secret law, which the administration refuses to fully disclose to Americans.

It is legal because Congress does not want to question or challenge the expansion of executive power going on in total secrecy. It does not bother them so they do not even bother to publicly agonize about how the administration is keeping secret law like Wyden or Udall might do.

The world is a battlefield does not only extend to the killing of people without charge or trial. It also involves the enabling of a surveillance state that can gain the authorization to treat any and all Americans as suspects at any time by conducting limitless investigations that violate individuals’ privacy without probable cause.

So, the significance of being able to read this top secret court order is not simply that it is another example of how President Obama is continuing the policies of President George W. Bush but that this is more actual proof that Americans’ private communications are being violated wholesale by secretly interpreted provisions through practices approved by a secret surveillance court. It is proof that US government officials desperately struggle against Americans to ensure such violations go unseen. And, it is not only foreign persons, who should be concerned, but also US citizens as well.

 

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Surveillance State Secrecy & the Top Secret Court Order to Hand Over Verizon Call Data to NSA

A court order that was classified as top secret indicates Verizon was ordered by a US secret surveillance court to provide call data of millions of communications of Americans on an “ongoing, daily basis” to the National Security Agency (NSA) from April 25 to July 19.

The order authorized by the Foreign Intelligence Surveillance Court was published by The Guardian and columnist, Glenn Greenwald, wrote about the order for the media organization, concluding that it showed for “the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.”

What numerous people covering this order have pointed out is that it exploits a section of the Patriot Act, which President Barack Obama and Congress reauthorized, known as Section 215. According to the American Civil Liberties Union, this provision “authorizes the government to seek secret court orders for the production of ‘any tangible thing’ relevant to a foreign-intelligence or terrorism investigation.” There is tremendous secrecy around this provision, including the facts that companies receiving such orders are prohibited from disclosing them and the government is secretly interpreting the authority that it grants for the conducting of broad surveillance.

Marc Ambinder of The Week reported the National Security Council put together talking points for responding to reaction to the court order. The first talking point is, “The article discusses what purports to be an order issued by the Foreign Intelligence Surveillance Court under a provision of the Foreign Intelligence Surveillance Act that authorizes the production of business records. Orders of the FISA Court are classified.”

As with the disclosures of previously secret US government documents by WikiLeaks, the administration intends to cast this aspersion that the posted document may or may not actually be a copy of an actual top secret court order issued by the secret surveillance court. The administration also seeks to deflect all the outrage by reminding the press and public that orders like this are supposed to be secret. It was not supposed to be public so the government will scold those in the press and seek out the source in retaliation for trying to force transparency and discussion of surveillance practices and legal authorities the Obama administration does not want anyone to challenge.

If one looks at the bottom of the order, a declassification date can be seen. It is 2038. That means it would have been twenty-five years from now that Americans might have learned the government was sweeping up “telephony metadata” or call data from this period in what appears to be a flagrantly non-targeted fashion.

Another one of the talking points the administration will fervently repeat that the information collected “has been a critical tool in protecting the nation from terrorist threats to the United States, as 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.” It is a claim that the administration does not believe needs to be publicly confirmed.

That is likely because the vacuuming up of data of Americans is preferable as it is easier than actually going to the trouble of targeting surveillance to actual specific individuals, who may pose threats. National security agencies have consciously chosen to drown agents or officers in millions upon millions of collected data rather than focus the collection so it might be possible to guarantee no threats get by the government.

All throughout the day, the Obama administration will diminish the significance of this top secret court order by saying it did not collect the content of phone calls and only “telephony metadata.”

Julian Sanchez of CATO has explained how merely collecting metadata can make it possible for the government to do geolocation tracking and get around “the need to obtain a full Fourth Amendment warrant based on probable cause.”:

Image by Scruffy Dan and Breanne under Creative Commons

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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