It certainly looks like the Obama administration took 50 USC ยง 1861 and really ran with it. I don’t know what they told the judge, but in obtaining all domestic (not foreign) Verizon phone records for a three month period, they’ve made it to hard to envision how they could possibly need all that information if they are supposed to be limited to obtaining “foreign intelligence information not concerning a United States person.” They can only peek at U.S. citizens under this law if their concern is not solely related to First Amendment rights and the citizen has some connection to “international terrorism or clandestine intelligence activities.” At least, that’s how the law reads to me.
I suspect that Glenn Greenwald is correct that this kind of massive sweep is what Senators Mark Udall and Ron Wyden have been concerned about.
The law on which the order explicitly relies is the so-called “business records” provision of the Patriot Act, 50 USC section 1861. That is the provision which Wyden and Udall have repeatedly cited when warning the public of what they believe is the Obama administration’s extreme interpretation of the law to engage in excessive domestic surveillance.
In a letter to attorney general Eric Holder last year, they argued that “there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows.”
“We believe,” they wrote, “that most Americans would be stunned to learn the details of how these secret court opinions have interpreted” the “business records” provision of the Patriot Act.
To be clear, these are not wiretaps. And it doesn’t cover the content of emails or text messages. But it is a record of every American Verizon user’s calls, texts, emails, and locations of where those messages were sent from and received. Since this is a leaked court order, I think we can safely assume that all the other phone carriers received a court order, too. We don’t know if this is a one-off thing or something that is re-upped every three months.
Whatever is going on, the judge is not supposed to grant the request unless he determines that the government has “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment).”
So, somehow, every use of a phone in this country is relevant to an authorized investigation?
Now, in fairness, these types of requests are still subject to minimization requirements which govern the retention and dissemination of the information. Presumably, the government can’t keep this information forever, nor can they share information on a willy-nilly basis.
And it’s too much information for them to look at without running it through sophisticated computers, and those computers aren’t looking to see if you’re cheating your business partner or fooling around on your husband. But this is concerning nonetheless, because they’re using a provision of a law that is supposed to allow the government to snoop on business records in certain defined circumstances to sweep up every electronic communication in the country.
If I try to think of a legitimate reason for doing this, and one in which it is not ongoing but limited to a three-month window, I still have trouble fitting it into the parameters of this law.
For example, the need to test new data-mining equipment would be one reason, but not one related to an authorized investigation. I don’t think the American people want this level of intrusion, and I think it demands some kind of explanation.
