We were warned. Over and over again. Not just by privacy advocates and by security experts and by civil liberties organizations and by the guy on the corner in the tin foil hat shouting about the government intercepting his brain waves. We were warned by some of the very people charged with overseeing the administration’s efforts to expand its domestic intelligence gathering capabilities. We were warned by politicians.
For many observers of the privacy and surveillance landscape, the revelation by The Guardian that the FBI received a warrant from the secretive Foreign Intelligence Surveillance Court to require Verizon to turn over to the National Security Agency piles of call metadata on all calls on its network probably felt like someone telling them that water is wet. There have been any number of signals in the last few years that this kind of surveillance and data collection was going on, little indications that the United States government was not just spying on its own citizens, but doing so on a scale that would dwarf anything that all but the most paranoid would imagine.
There have been reports in the press for nearly a decade about NSA domestic surveillance activities. More than seven years ago, USA Today published a detailed account of some of the same kinds of allegations about the NSA building a massive database of consumer and business call records. And the EFF and other groups have been warning about such activities–and suing for details of them–for many years, with limited success. The order that the FISC issued to Verizon essentially requires the carrier to give the NSA data on every single call on its network, to include the numbers on both ends of a call, the IMSI (International Mobile Subscriber Identifier) number, duration of the call and call routing data. The order does not require the company to turn over the contents of the calls.
While the Verizon order is the first to be exposed to the light of the day, it likely isn’t the only one that’s been issued. There’s nothing in the text of the order to make it seem so, and if the FBI was successful in getting an order for Verizon, there’s no reason to think it wouldn’t seek the same for other carriers.
“There is no indication that this order to Verizon was unique or novel. It is very likely that business records orders like this exist for every major American telecommunication company, meaning that, if you make calls in the United States, the NSA has those records,” Cindy Cohn and Mark Rumold of the EFF wrote in their analysis of the order.
The authority for this extraordinary data collection comes from the FISC, the court that interprets the Foreign Intelligence Surveillance Act and issues rulings on how the U.S. government can use the act to spy on Americans. FISA has been used as the basis for the drastic expansion of domestic electronic surveillance over the last decade, and much of that has been done through classified orders such as the one uncovered by The Guardian. By design, Americans have little to no visibility into this process. But there are some people who do get information on a regular basis on what’s going on in this murky world: the members of Congress tasked with overseeing the intelligence community.
Two of the members of the Senate Select Committee on Intelligence, Sen. Ron Wyden (D-Ore.) and Mark Udall (D-Col.), have been speaking out about what they see as the dangerous expansion of the use of secret law for several years, and they have warned repeatedly about domestic surveillance. Their remarks have necessarily been vague and circumspect in many cases, as they’re bound by secrecy laws, but they have made it clear that the kind of surveillance happening in the U.S. now is something that would shock most Americans. In a 2011 letter to Attorney General Eric Holder, Wyden and Udall said that they think the government is interpreting secret law regarding surveillance in a radically different way than what most Americans would expect.
“As you know, we have been concerned for some time that the U.S. is relying on secret interpretations of surveillance authorities that–in our judgment–differ significantly from the public’s understanding of what is permitted under U.S. law,” they wrote.
“Americans will eventually and inevitably come to learn about the gap that currently exists between the public’s understanding of government surveillance authorities and the official, classified interpretation of these authorities.”
And now Americans know just how large that gap is.
A year later, in a letter to James Clapper, the director of national intelligence, in 2012, Wyden and Udall again warned that the kind of surveillance being done domestically is well beyond the scope of what U.S. citizens think is happening. If Americans think about it all.
“We are concerned that Congress and the public do not currently have a full understanding of the impact that this law has had on the privacy of law-abiding Americans,” the senators wrote in the letter. “In particular, we are alarmed that the intelligence community has stated that ‘it is not reasonably possible to identify the number of people located inside the United States whose communications may have been reviewed’ under the FISA Amendments Act.”
We were warned.
Image from Flickr photostream of Matthew Peoples.