The Obama administration is defending on Thursday an apparent secret court order that allows it access to the basic phone call information of many Americans.
The story raises important constitutional questions about the scope of government surveillance of private citizens, and how the Fourth Amendment protection against unreasonable searches applies in an era of digital communications and terrorism.
It also is another potentially awkward story about media leaks for an administration dealing with the fallout of ongoing coverage about its surveillance of reporters at the Associated Press and Fox News, and a current trial involving WikiLeaks and Bradley Manning.
The British media outlet The Guardian broke the story when it published what it claimed was the top-secret order, which directed Verizon, a huge phone carrier, to give the FBI access to all phone numbers, locations, and other basic data for calls made domestically and internationally by customers.
The order didn’t request the “substantive content” of phone calls, just “telephony data.”
The Washington Post later confirmed, through two sources, that the document appeared to be authentic, and it also appeared to be a “rubber stamp” order that was routinely approved every three months. A source told the Post that the order appeared to be typical of directives given to many domestic phone carriers in a program that may have started in 2006.
The New York Times also reported that a source confirmed the order as authentic.
The Obama administration reacted quickly to the reports. In a statement on Thursday morning, it would not comment on the authenticity of the document, but it said theoretically the type of request was entirely legal and needed for national security purposes.
An official said that “all three branches of government are involved in reviewing and authorizing intelligence collection” and Congress “is regularly and fully briefed” on how the information is used by the FBI.
The request was directed by the FBI to the Foreign Intelligence Surveillance Court, an 11-judge secret court whose members are appointed by the chief justice of the United States. A current federal judge’s name is on the document as approving the request.
The request was made under the powers of the Patriot Act. But the unnamed Obama administration official who spoke with several media outlets was careful to make a distinction that the court order didn’t call for wiretaps without a warrant.
“On its face, the order reprinted in the article does not allow the government to listen in on anyone’s telephone calls,” a White House official said, as reported on Politico. “The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to metadata, such as a telephone number or the length of a call.”
The Fourth Amendment prohibits “unreasonable” searches and seizures, and there is a long legal history involving wiretaps and the need for probable cause and judicial permission to perform electronic surveillance on citizens.
But in a modern electronic age, some experts say the law and the courts are lagging behind technology—and they not fully aware of the ability of the National Security Agency to determine key facts about individuals without listening to their phone calls.
In addition to the Fourth Amendment issues, two U.S. senators have questioned the public rationale issued by the Obama administration about the legal reasoning behind the requests.
The Times said two Democrats on the Senate Intelligence Committee, Ron Wyden of Oregon and Mark Udall of Colorado, have complained that the public explanations for the decisions haven’t matched what they’ve been told in private, classified briefings.
“As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says,” the senators said in a letter to Attorney General Eric Holder in March 2012.
Udall told CNET on Wednesday night that citizens should take notice of the reports.
“While I cannot corroborate the details of this particular report, this sort of widescale surveillance should concern all of us and is the kind of government overreach I’ve said Americans would find shocking. As a member of the Senate Intelligence Committee, it’s why I will keep fighting for transparency and appropriate checks on the surveillance of Americans,” he said.
The order that appeared in The Guardian, which was marked “TOP SECRET//SI//NOFORN,” would be a leak of an extremely top-secret, classified document, and its release would be the latest in a series of issues involving security leaks and the Obama administration.
Scott Bomboy is the the editor-in-chief of the National Constitution Center.
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