Monday, October 20, 2014
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Verizon and the NSA: What we don't know (and what we know but don't want to face)

The FISA order on Verizon phone records lifts the corner of a veil. There's much we don't know, but also much we already do - and don't want to face.

Verizon and the NSA: What we don't know (and what we know but don't want to face)

FILE - In this Feb. 10, 2011 file photo, Chris Cioban, manager of the Verizon store in Beachwood, Ohio, holds up an Apple iPhone 4G. Britain´s Guardian newspaper says the National Security Agency is currently collecting the telephone records of millions of U.S. customers of Verizon under a secret court order. The newspaper said Wednesday, June 5, 2013 the order was issued in April and was good until July 19. The newspaper said the order requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the U.S. and between the U.S. and other countries.  (AP Photo/Amy Sancetta, File)
FILE - In this Feb. 10, 2011 file photo, Chris Cioban, manager of the Verizon store in Beachwood, Ohio, holds up an Apple iPhone 4G. Britain's Guardian newspaper says the National Security Agency is currently collecting the telephone records of millions of U.S. customers of Verizon under a secret court order. The newspaper said Wednesday, June 5, 2013 the order was issued in April and was good until July 19. The newspaper said the order requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the U.S. and between the U.S. and other countries. (AP Photo/Amy Sancetta, File)

Writing for Britain's The Guardian newspaper, Glenn Greenwald has disclosed a large-scale, top-secret data demand by the U.S. government: The FBI asked the Foreign Intelligence Surveillance Court in April to order Verizon to turn over three months of certain call records - including records of purely domestic calls - to the National Security Agency. 

As he has done in the past, Greenwald has focused attention on the vast reach of the post-9/11 U.S. security apparatus. You can read his report here, and find a link to the highly classified document he posted. Greenwald has lifted at least a corner of the veil shrouding the U.S. government's focus on phone records as a counterterrorism tool - a focus reported to date back to the 2001 attacks, or perhaps even before .

Presuming the accuracy of the document - and the White House has already defended the intelligence-gathering practice, though without confirming any details - it's worth noting how much Greenwald's report leaves unclear, and also how it fits into what we already know but don't seem willing to face. For instance:

The scope of the particular order.The FISA order Greenwald posted applies to "Verizon Business Network Services Inc., on behalf of MCI Communications Services Inc.. d/b/a Verizon Business Services." That would appear to refer to a business-services portion of Verizon that is separate, for instance, from its large Verizon Wireless segment, a joint venture co-owned with Britain's Vodafone. But that doesn't mean other, undisclosed orders don't apply to the rest of Verizon's call records - or anyone else's.

The time frame of the order. It was signed April 25, 10 days after the Boston Marathon bombings, and expires about three months later.  But Sen. Dianne Feinstein (D., Calif.), chair of the Senate Intelligence Committee, says it was a renewal of a previous order and reflects an ongoing practice. Again, that's not necessarily limited to a single segment of Verizon or to a single carrier.

The reach of the data demand. The FISA order defines the data demanded as "telephony metadata," and says it "includes comprehensive communications routing information,. including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by 18 U.S.C. Sec. 2510(8), or the name, address, or financial information of a subscriber or customer." But that doesn't mean the government couldn't, via separate orders, have demanded access to at least some calls' content.

CNET's Declan McCullagh says the issue underlying the Verizon order, which the American Civil Liberties Union called "beyond Orwellian," is the broad scope of Section 215 of the Patriot Act, long criticized as a hastily enacted overreaction to the horror of the 2001 attacks.

McCullagh writes:

The Justice Department's secret interpretation of Section 215 was what alarmed Sens. Ron Wyden (D-Oregon) and Mark Udall (D-Colorado) when the Patriot Act was up for renewal two years ago. Both senators served on the intelligence committee and were briefed on the NSA's activities.

"I believe that when more of my colleagues and the American public come to understand how the Patriot Act has actually been interpreted in secret, they will insist on significant reforms too," Wyden said at the time.

There have been plenty of warnings - including from NSA whistleblower Thomas Drake, or this one that McCullagh quotes from former Sen. Russ Feingold (D., Wisc.) in a 2010 floor speech before he left the Senate:

Section 215 has been misused. I cannot elaborate, but I believe that the public deserves some information about this. I and others have also pressed the administration to declassify some basic information about the use of section 215, and it has declined... We must find a way to have an open and honest debate about the nature of these government powers, while still protecting national security secrets, and under current conditions that simply isn't possible... Lawyers in the Office of Legal Counsel looked for every possible loophole in statutory language to justify what I believe were clearly illegal wiretapping and interrogation programs. That should also teach us that we must be extraordinarily careful in how we draft these laws: We must say exactly what we mean and leave no room for reinterpretation.

The FISA order explicitly bars Verizon and everyone within the order's reach from disclosing its details, which raises the question of whether it will be followed by another aggressive leak investigation.

But even without Greenwald's report, we know enough to at least ask the key question: Is there a limit to the amount of security-state surveillance we want to accept in order to prevent future attacks or catch terror suspects? We're in charge of the rules, and right now there's pretty much no limit at all.

Jeff Gelles Inquirer Business Columnist
About this blog

Jeff Gelles, who writes the Inquirer's weekly Consumer 14.0 and Tech Life columns, takes a broad look at the marketplace of goods, services, and ideas.

Reach Jeff at jgelles@phillynews.com.

Jeff Gelles Inquirer Business Columnist
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