Section 215 of Patriot Act again under scrutiny

Tools

Public revelation of a top secret order directing a Verizon unit to turn over to the federal government records pertaining to domestic and international phone calls has thrown new scrutiny over federal interpretation over a Patriot Act section allowing the government to obtain "any tangible things" relevant to a terrorism investigation.

In the first of a series of leak-fueled exposés about federal surveillance of telecommunications networks, British newspaper The Guardian published June 5 a top secret order from the Foreign Intelligence Surveillance Court directing Verizon Business Network Services "on an ongoing daily basis" to transmit to the National Security Agency metadata about domestic and international phone calls.

Over the weekend, the self-professed leaker, identified by The Guardian as Edward Snowden, a former CIA technical assistant and Booz Allen Hamilton contractor for the National Security Agency, stepped forward to identify himself. Snowden's last known location was a hotel in Hong Kong.

The order draws on legal authority from Section 215 of the Patriot Act (codified at 50 USC § 1861), which amended the Foreign Intelligence Surveillance Act to permit the FBI to apply for court orders requiring recipients to produce records in the course of a terrorism investigation, "even if there is no showing that the 'thing' pertains to suspected terrorist or terrorist activities," says the American Liberties Union. The ACLU has sued to compel the Justice Department to release information on its use of Section 215.

Justice officials in the past have in the past left an impression that government used Section 215 "sparingly and for specific materials," said Rep. James Sensenbrenner (R-Wisc.) in a June 6 letter to Attorney General Eric Holder. Sensenbrenner, the Patriot Act's original congressional sponsor, said he believes the Verizon order to be inconsistent with the act. "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 June 6 statement, Director of National Intelligence James Clapper acknowledged that the intelligence community's approach to collection is broad in scope, stating that a "more narrow collection would limit our ability to screen for and identify terrorism-related communications."

Access to the database of telephony metadata is limited to personnel trained in FISC procedures and the court allows queries based only on a reasonable suspicion that an association exists with a foreign terrorist organization, the statement adds.

The statement also notes that the order does not permit intelligence agencies to scrutinize the content of calls, a point reiterated June 7 by President Obama. "Nobody is listening to your telephone calls," Obama said, adding that telephony metadata doesn't include the names associated with telephone calls.

Privacy advocates say both points – the fact of metadata, not content being collected and the fact of names not being included in the metadata – amount to thin privacy protection. The federal government has other ways of associating subscriber information with telephone numbers, many have noted.

Further, metadata can reveal much about a caller. "They know you spoke with an HIV testing service, then your doctor, then your health insurance company in the same hour. But they don't know what was discussed," notes the Electronic Frontier Foundation in a blog post.

Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, told reporters that the order is part of an ongoing, 7 year old surveillance program. She and committee ranking member Saxby Chambliss (R-Ga.) issued June 6 a joint statement defending the program, stating that the Senate and House intelligence and judiciary committees have been briefed extensively, and that "detailed information has been made available to all members of Congress prior to each congressional reauthorization of this law."

For more:
- read an ACLU annotated version of the Verizon FISC court order

Related Articles:
Sweep of digital wiretapping too broad, says human rights report
'Going dark' remedy could boomerang to undermine national security
Foreign Intelligence Surveillance Court denied no applications in 2012