Scope of phone records seizure causes alarm; data collection goes beyond Verizon
By Dave Boyer
The Washington Times
Thursday, June 6, 2013
The Obama administration on Thursday defended its secret seizure of the phone records of millions of U.S. citizens as part of counterterrorism efforts, while privacy advocates blasted the move as illegal and a debate erupted in Congress over the intended scope of a key surveillance law.
In a new development, the National Security Agency and the FBI are tapping into the central servers of nine leading U.S. Internet companies in real time, obtaining audio and video chats, photographs, e-mails and other information, various news outlets reported. The program is code-named PRISM.
The revelation that the National Security Agency has been collecting phone records from Verizon Communications of all calls within the U.S. and to sources overseas raised accusations that President Obama is running a police state, in spite of his 2008 campaign promise to expand civil liberties while prosecuting the war on terror differently from his Republican predecessor.
On Thursday, the scope of the records seizure apparently expanded as former government officials familiar with the details of the domestic spying said more phone companies likely are involved and lawmakers said the court order is a routine three-month update of an ongoing program.
But a White House official said such domestic surveillance is a "critical tool in protecting the nation from terror threats."
"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," said White House deputy press secretary Joshua Earnest.
"The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to call details, such as a telephone number or the length of a telephone call."
The furor prompted Director of National Intelligence James Clapper to issue a rare statement late Thursday night in which he argued that the disclosure "threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation."
"Discussing programs like this publicly will have an impact on the behavior of our adversaries and make it more difficult for us to understand their intentions," Mr. Clapper said.
Latest civil liberties issue
The timing of the report came as the Obama administration already taking fire over civil liberties issues, from the IRS targeting conservative groups for extra scrutiny to the Justice Department seizing the phone records of journalists in efforts to uncover the sources of leaks of classified information.
Lawmakers of both parties on the Senate Intelligence Committee said the wholesale domestic surveillance has been going on for seven years, and that it's necessary to prevent terrorist attacks.
"It's called protecting America," said Sen. Dianne Feinstein, California Democrat, saying that the secret court order which Britain's Guardian newspaper posted online Wednesday night is a routine three-month renewal and proves that the program is carefully overseen by federal judges.
Sen. Saxby Chambliss, Georgia Republican, said the surveillance has "proved meritorious, because we have gathered significant information on bad guys, but only on bad guys, over the years."
But other lawmakers called the seizures an outrageous invasion of privacy and they said the Patriot Act, under which the snooping was granted, was never intended to allow for blanket surveillance of Americans without any suspicion of wrongdoing.
Rep. F. James Sensenbrenner Jr., who as chairman of the House Judiciary Committee helped write the Patriot Act after the Sept. 11 terrorist attacks, said the administration's massive collection of phone records is an "abuse" of the law.
"How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the act?" he wrote in a letter to Attorney General Eric H. Holder Jr.
Sen. Ron Wyden, Oregon Democrat, also raised the possibility of administration officials lying to Congress in service of the program. He posted on his Twitter feed a video in which Director of National Intelligence James Clapper "specifically told me #NSA does not wittingly collect any type of data on millions of Americans."
"No, sir ... not wittingly," Mr. Clapper told Mr. Wyden at the March hearing in response to a question worded near identically to the senator's Thursday tweet, though he cautioned that NSA could "inadvertently collect" such data.
Already reeling from accusations of too much intrusion by the Justice Department, White House officials did not dispute that a court order signed by Judge Roger Vinson of the Foreign Intelligence Surveillance Court in April directs Verizon Communications to turn over "on an ongoing daily basis" to the NSA all call logs "between the United States and abroad" or "wholly within the United States, including local telephone calls."
The FBI requested the court order, first reported by Britain's Guardian newspaper, with the surveillance to last until July 19.
A former NSA employee, William Binney, said other phone companies' records have been seized routinely by the agency. USA Today reported in 2006 that three phone companies — Verizon, Bell South and AT&T — had been turning over data on Americans' domestic phone calls to NSA, though lawmakers told the newspaper then that the companies' cooperation was only partial.
"NSA has been doing all this stuff all along and it's been all the companies, not just one," Mr. Binney said in a discussion hosted by the progressive nonprofit group Democracy Now!
Thomas Drake, another former NSA official, said the revelation shows that government secrecy has become "institutionalized."
"This isn't just a terrorist issue, this is simply the ability of the government in secret on a vast scale to collect any and all phone call records including domestic to domestic, local, as well as location information," Mr. Drake said.
"There is no need to call this the Foreign Intelligence Surveillance Court. Let's just call it the 'surveillance court,' it's no longer about foreign intelligence. It's simply about harvesting millions and millions and millions of phone call records and beyond," he said.
Also Thursday, the Guardian revealed the five-year existence of another NSA-FBI surveillance program, this one getting data from America's Internet giants.
"The NSA access is part of a previously undisclosed program called PRISM, which allows them to collect material including search history, the content of emails, file transfers and live chats," the Guardian wrote, citing a top-secret Power Point presentation.
The slide show boasts of "collection directly from the servers" of companies such as Yahoo, Google, Microsoft, Apple. YouTube and Skype. Several of the companies told multiple news outlets Thursday that they had no knowledge of the program and that any access to their servers was clandestine.
Backlash under way
Privacy advocates reacted angrily to the news.
University of Notre Dame Law Professor Jimmy Gurulé, a former assistant U.S. Attorney General and former undersecretary for enforcement for the Treasury Department, called the program "deeply disturbing."
"It strains credulity to believe that there is probable cause to believe that the millions of Americans targeted by the NSA are engaged in international terrorism," Mr. Gurulé said. "This appears to be an abuse of power that threatens the civil liberties of all Americans. Further, if Congress is aware of these FISA warrants and has failed to act to restrain the NSA's overreach, it is complicit by omission."
The White House and some lawmakers said Congress is briefed regularly about such surveillance programs.
"The intelligence community is conducting court-authorized intelligence activities pursuant to a public statute with the knowledge and oversight of Congress and the intelligence community in both houses of Congress," Mr. Earnest said.
"There is also extensive oversight by the executive branch, including the Department of Justice and relevant agency counsels and inspectors general, as well as annual and semi-annual reports to Congress as required by law."
But many lawmakers said they are often kept out of the loop on sensitive national security issues.
"This 'fully brief' is something that drives us up a wall because often 'fully briefed' usually means a group of eight [members of] leadership," said Sen. Barbara A. Mikulski, Maryland Democrat.
Many expressed outrage at the revelation of the phone seizures.
"If the president and Congress would obey the Fourth Amendment we all swore to uphold, this new shocking revelation that the government is now spying on citizens' phone data en masse would never have happened," said Sen. Rand Paul, Kentucky Republican.
The White House said Mr. Obama "welcomes" a debate about the trade-offs between national security and civil liberty.
"The close examination of some of these complicated issues could cause people to arrive at differing opinions," he said. "The president welcomes that debate. He has his own ideas, he's presented them."
Two weeks ago, in a speech at the National Defense University about the use of drones in the war on terror, Mr. Obama outlined a plan for shifting away from perpetual war with terrorists.
"In the years to come, we will have to keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are," Mr. Obama said.
"That means reviewing the authorities of law enforcement so we can intercept new types of communication, but also build in privacy protections to prevent abuse."
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About the Author
Dave Boyer is a White House correspondent for The Washington Times. A native of Allentown, Pa., Boyer worked for the Philadelphia Inquirer from 2002 to 2011 and also has covered Congress for the Times. He is a graduate of Penn State University. Boyer can be reached at email@example.com.