The unauthorized release last week of the text of a four-page order issued by a federal judge sitting on the special FISA national security court has unleashed a torrent of controversy over possible governmental overreaching.
The FISA court was established by the Foreign Intelligence Surveillance Act to evaluate surveillance requests by the federal government; the order in question, issued at the behest of the FBI, directed Verizon Business Network Services to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”
Apparently the order is silent as to whether it applies to the actual content of the communications. And it was unclear as to whether similar orders applied to other telecommunications carriers, though it seems highly likely. The confusion is heightened by the fact that the order itself prohibits any recipient from discussing its existence, and so representatives of Verizon and other telecommunications carriers refused to comment to reporters.
The release of the order led to disclosures that under the so-called Prism program the NSA has also secretly acquired the phone records of millions of Americans and access to e-mails, videos and other data of foreigners from nine U.S. Internet companies, even when they involve American citizens.
Simply put, it now appears likely that federal authorities routinely collect information on virtually all communications on the part of Americans, whether or not they are connected to a national security investigation.
President Obama has attempted to tamp town the ensuing furor by acknowledging the intrusions on the privacy of Americans but characterizing them as “modest encroachments” that “were worth doing” in order to protect the country, characterizing them as a necessary “tradeoff.”
He also said the NSA telephone surveillance program collects phone numbers and the duration of calls but not the content and insisted that the Internet surveillance program targets only foreigners living abroad, not Americans.
Just the same, what would have seemed like hair-raising science fiction only a few years ago has become the reality we now live with.
As New York Times reporters James Risen and Eric Lichtblau put it, “a revolution in software technology that allows for the highly automated and instantaneous analysis of enormous volumes of digital information has transformed the NSA, turning it into the virtual landlord of the digital assets of Americans and foreigners alike. The new technology has, for the first time, given America’s spies the ability to track the activities and movements of people almost anywhere in the world without actually watching them or listening to their conversations.”
It is still far too early to come to any real conclusions about what the Obama administration has been up to here. The likelihood is that at worst it is extending what was already being done during the Bush administration. But the secrecy shrouding the issue will make it difficult if not impossible to get at the truth. As noted, companies receiving a FISA order are barred from discussing it. Moreover, the FISA court does not release the text of its decisions implementing the language of the Foreign Intelligence Surveillance Act. So we are governed by the secret applications of a law we are not permitted to review.
There are, however, some possible concerns apparent even now. It was an article of faith that J. Edgar Hoover was able to stay on as director of the FBI for nearly half a century largely because he maintained secret files – all right, dirt – on politicians. It is not hard to envision elected officials and bureaucratic hacks gaining access to the unimaginable amount of information now under the jurisdiction of the executive branch and using it to intimidate political opponents in a Hoover-like manner.
In addition, our criminal justice system does not allow for the introduction of evidence secured through an unlawful search. That is, there must be a warrant based on a prosecutorial claim of probable cause that a specific crime was or is about to be committed. It seems this requirement may well become a relic of the past as the legal and routine scooping up of vast stores of information will make virtually all evidence presumptively admissible.