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Leaked order offers insight on secret surveillance powers

Jun. 6, 2013 - 04:38PM   |  
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.
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. (Amy Sancetta/AP)
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The disclosure of a classified court order requiring a Verizon subsidiary to disclose its customers’ calling records to the NSA offered a rare glimpse into the breadth of the federal government’s secret authority to mine Americans’ secrets in its hunt for terrorists.

The order, published late Wednesday by The Guardian, was issued by a federal judge under a section of the Foreign Intelligence Surveillance Act (FISA) that allows the government to seek a judge’s approval to force businesses to turn over records if officials can show that they are “relevant” to intelligence or terrorism investigations.

Although the surveillance law itself is not secret, the Justice Department’s interpretation of just how broadly that authority applies remains classified, as do decisions from the Foreign Intelligence Surveillance Court responsible for approving the government’s surveillance requests. Recipients of FISA orders are prohibited from revealing their existence.

Wednesday’s leak is the first time in recent memory that a FISA surveillance order had been revealed to the public, said Carrie Cordero, a Georgetown Law professor and former Justice Department national security official. “Regardless of the origin of the leak, this is an unprecedented breach of the trust maintained for over 30 years,” Cordero said.

The order was approved under a provision of the surveillance law that allows the government to seek business records if it can persuade the court they are relevant to “to protect against international terrorism or clandestine intelligence activities.” That standard is far lower than in traditional search warrant applications, which require the government to show probable cause to believe that the records agents are seeking will reveal information about a crime.

Experts said the FISA order offers new insight into how broadly the intelligence court and the Justice Department appear to have defined the types of records they are permitted to seek and how thin their connection has to be to a particular suspect.

“Congress didn’t authorize dragnet surveillance. The government has to have reasonable grounds to believe the records are relevant to an authorized investigation,” said Elizabeth Goitein, co-director of the National Security Program at New York University’s Brennan Center for Justice. “If they’re saying that an entire telecom company’s records for all of its subscribers can be considered relevant to an intelligence investigation, then that standard has become meaningless.”

American University law professor Steven Vladeck said it also had not been clear previously that the Justice Department thought it could collect telephone calling records under the provision that allows it to collect business records. “The real story is not what the government has in its possession, but how they’re getting there,” he said. “That’s the reason this is a gold mine” for people who want to know more about how the government is using its surveillance powers.

Congress passed FISA in 1978 as a way to make sure that lawmakers and judges would have some oversight of the government’s domestic intelligence collection. The law generally requires that federal agents obtain orders from the intelligence court to force businesses and others to turn over records for intelligence investigations. Congress broadened those intelligence-gathering powers under Section 215 of the Patriot Act, a measure civil liberties groups had criticized for permitting federal agents to trawl through Americans’ library records.

The government’s requests for records are supposed to include “minimization” procedures spelling out how officials would segment off information that turns out not to be relevant to their investigation. The order leaked Wednesday did not identify those steps, and did not reveal how the government planned to use the records it obtained.

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