NSA secretly vacuumed up Verizon phone records

A top secret order reveals that the National Security Agency is gathering records of millions of phone calls made by Americans.

Declan McCullagh  by
The Fort Meade, Md. headquarters of the National Security Agency, which is vacuuming up Verizon call records "on an ongoing daily basis."The Fort Meade, Md. headquarters of the National Security Agency, which is vacuuming up Verizon call records “on an ongoing daily basis.”

(Credit: Getty Images)

The National Security Agency is vacuuming up records of millions of phone calls made inside the United States, a top secret court order reveals.

A top secret order that was leaked this afternoon requires Verizon to hand over to the NSA “on an ongoing daily basis” information about all domestic and overseas calls — “including local telephone calls.”

The FBI obtained the secret order, which was disclosed today by The Guardian newspaper, from the secret Foreign Intelligence Surveillance Court, which meets behind closed doors and whose proceedings rarely become public. It was signed by FISC Judge Roger Vinson, who normally serves as a federal judge in Florida.

Vinson’s order relies on Section 215 of the Patriot Act, 50 USC 1861, better known as the “business records” portion. It allows FBI agents to obtain any “tangible thing,” including “books, records, papers, documents, and other items,” a broad term that includes dumps from private-sector computer databases with limited judicial oversight.

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 other hints that the NSA’s massive databases were being fed Americans’ confidential telephone records — which can then be perused by the FBI for domestic criminal investigations.

Former FBI counterterrorism agent Tim Clemente told CNN last month that, in national security investigations, the bureau can access records of a previously-made telephone call. “All of that stuff is being captured as we speak whether we know it or like it or not,” he said. Clemente added in an appearance the next day that, thanks to the “intelligence community” — a likely reference to the NSA — “there’s a way to look at digital communications in the past.”

Vinson’s top secret order dated April 25, which expires July 19, does not require Verizon to divulge the contents of communications or the identities of its customers. It does force the company to hand over originating and terminating telephone number, the IMSI, and IMEI numbers for mobile phones, trunk identifiers, the time of the call, and other information.

The Justice Department previously confirmed that Section 215 “has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like.” Todd Hinnen, acting assistant attorney general for national security, told a House of Representatives committee that such directives were constitutional because they are “not a ‘search’ within the meaning of the Fourth Amendment.” (The Fourth Amendment, of course, prohibits “unreasonable” searches and seizures.)

FBI Director Robert Mueller hinted during a 2011 congressional hearing that there was a secret legal memorandum prepared by the Justice Department’s Office of Legal Counsel that authorized a broader use of Section 215 than is publicly known.

Wyden, who was present at that hearing, told Mueller that he was “increasingly troubled” that intelligence agencies are “relying on a secret interpretation” of the Patriot Act. “I believe that the American people would be absolutely stunned,” Wyden said, if they knew what was actually going on.

Section 215 says that an order must be approved by the secret FISA court if the FBI shows the data “sought are relevant to an authorized investigation” dealing with terrorism — a requirement that provides little privacy protection in practice.

Another hint about overly broad use of Section 215 came from former Sen. Russ Feingold, a Democrat who has since lost his seat. He said in a February 2010 floor speech that:

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