Journalism in the Public Interest
The headquarters of the National Security Agency at Fort Meade, Maryland.
ProPublica, June 10, 2013, 4:05 p.m.
Last week saw
revelations
that the FBI and the National Security Agency have been collecting
Americans’ phone records en masse and that the agencies have access to
data from nine tech companies.
But secrecy around the programs has meant even basic questions are still unanswered. Here’s what we still don’t know:
Has the NSA been collecting all Americans’ phone records, and for how long?
It’s not entirely clear.
The Guardian published a
court order that
directed a Verizon subsidiary to turn over phone metadata -- the time
and duration of calls, as well as phone numbers and location data -- to
the NSA “on an ongoing daily basis” for a three-month period. Citing
unnamed sources, the Wall Street Journal
reported the
program also covers AT&T and Sprint and that it covers the majority
of Americans. And Director of National Intelligence James Clapper
himself
acknowledged that the “collection” is “broad in scope.”
How long has the dragnet has existed? At least seven years, and maybe going back to 2001.
Senate Intelligence Committee chair Dianne Feinstein, D-Calif., and
vice chair Saxby Chambliss, R-Ga., said last week that the NSA has been
collecting the records
going back to 2006. That’s the same year that USA Today
revealed a
similar-sounding mass collection of metadata, which the paper said had
been taking place since 2001. The relationship between the program we
got a glimpse of in the Verizon order and the one revealed by USA Today
in 2006 is still not clear: USA Today described a program not authorized
by warrants. The program detailed last week does have court approval.
What surveillance powers does the government believe it has under the Patriot Act?
That’s classified.
The Verizon court order relies on
Section 215 of the Patriot Act. That
provision allows
the FBI to ask the Foreign Intelligence Surveillance Court for a secret
order requiring companies, like Verizon, to produce records – “any
tangible things” – as part of a “foreign intelligence” or terrorism
investigation. As with any law, exactly what the wording means is a
matter for courts to decide. But the Foreign Intelligence Surveillance
Court’s interpretation of Section 215 is secret.
As Harvard Law Professor Noah Feldman recently
wrote,
the details of that interpretation matter a lot: “Read narrowly, this
language might require that information requested be shown to be
important or necessary to the investigation. Read widely, it would
include essentially anything even slightly relevant — which is to say,
everything.”
In the case of the Verizon
order -- signed
by a judge who sits on the secret court and requiring the company to
hand over “all call detail records" -- it appears that the court is
allowing a broad interpretation of the Patriot Act. But we still don’t
know the specifics.
Has the NSA’s massive collection of metadata thwarted any terrorist attacks?
It depends which senator you ask. And evidence that would help settle the matter is, yes, classified.
Sen. Mark Udall, D-Colo.,
told CNN
on Sunday, “It's unclear to me that we've developed any intelligence
through the metadata program that's led to the disruption of plots that
we could [not] have developed through other data and other
intelligence.”
He said he could not elaborate on his case “without further declassification.”
Sen. Feinstein
told ABC
that the collection of phone records described in the Verizon order had
been “used” in the case of would-be New York subway bomber
Najibullah Zazi.
Later in the interview, Feinstein said she couldn’t disclose more
because the information is classified. (It’s worth noting that there’s
also evidence that
old-fashioned police work helped solve the Zazi case — and that
other reports suggest the Prism program, not the phone records, helped solve the case.)
How much information, and from whom, is the government sweeping up through Prism?
It’s not clear.
Intelligence director Clapper said in his declassified
description that
the government can’t get information using Prism unless there is an
“appropriate, and documented, foreign intelligence purpose for the
acquisition (such as for the prevention of terrorism, hostile cyber
activities, or nuclear proliferation) and the foreign target is
reasonably believed to be outside the United States.”
One thing we don’t know is how the government determines who is a “foreign target.” The Washington Post
reported that
NSA analysts use “search terms” to try to achieve “51 percent
confidence” in a target’s “foreignness.” How do they do that? Unclear.
We’ve also never seen a court order related to Prism -- they are secret -- so we don’t know how broad they are. The Post
reported that the court orders can be sweeping, and apply for up to a year. Though Google has
maintained it has not "received blanket orders of the kind being discussed in the media."
So, how does Prism work?
In his
statement Saturday,
Clapper described Prism as a computer system that allows the government
to collect “foreign intelligence information from electronic
communication service providers under court supervision.”
That much seems clear. But the exact role of the tech companies is still murky.
Relying on a leaked PowerPoint presentation, the Washington Post
originally described
Prism as an FBI and NSA program to tap “directly into the central
servers” of nine tech companies including Google and Facebook. Some of
the companies
denied giving the government “direct access” to their servers. In a later
story,
published Saturday, the newspaper cited unnamed intelligence sources
saying that the description from the PowerPoint was technically
inaccurate.
The Post quotes a classified NSA report saying that Prism allows
“collection managers [to send] content tasking instructions directly to
equipment installed at company-controlled locations,” not the company
servers themselves. So what does any of that mean? We don't know.
For more on mass surveillance in America, read our timeline of loosening laws and practices.
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