Surveillance Powers Given and Taken
Surveillance Powers Given and Taken Lyrics
1. USA Patriot Act
On June 5, 2013, The Guardian published an astonishing Top Secret Foreign Intelligence Surveillance Court (FISA Court) order that compelled Verizon Business Network Services to provide the National Security Agency (NSA) with the “telephony metadata” for all of its customers’ domestic and international telecommunications on an “ongoing daily basis” for the three-month duration of the order.
Metadata includes the telephone numbers called and received, calling card numbers, mobile subscriber identity and station information numbers, and time and duration of calls. This information gives the government a detailed picture of a person’s interests, associations, and activities, including personally intimate or potentially embarrassing information,such as whether they've called a virility clinic, Alcoholics Anonymous, or a suicide hotline. The order was issued pursuant to an FBI request for “business records” under Section 215 of the USA Patriot Act, which authorizes the FISA Court to issue secret demands for “any tangible things,” based on the FBI’s declaration that the information is “relevant” to a terrorism or espionage investigation.
The Washington Post reported that tens of millions of Verizon customers’ records have been seized under this program, and Sen. Dianne Feinstein (D-Calif.)said this order appeared to be “the exact three-month renewal” of similar orders that began in 2006. With over 200 Section 215 orders issued in 2012, it is very likely that many other telecommunications companies received similar requests for all their customers’ metadata as well.
And since Section 215 authorizes the government to obtain “any tangible things,” it is also likely that the FBI uses the provision to do bulk collection of other types of records. The statute specifically states that FBI agents may seek library circulation and book sales records, medical records, tax returns, and firearms sales records using Section 215, with approval of an FBI Executive Assistant Director. Rep. James Sensenbrenner (R-Wis.), the original House of Representatives’ sponsor of the Patriot Act, said the Foreign Intelligence Surveillance Court’s order to Verizon reflected an “overbroad interpretation of the Act” that was “deeply disturbing.” Rep. Sensenbrenner said the language in the statute was not intended to authorize such broad collection and questioned how the phone records of millions of innocent Americans could possibly be deemed “relevant” to a terrorism or counterintelligence investigation, as Section 215 requires. Indeed, FBI Director Mueller’s 2011 testimony before the Senate Intelligence Committee seeking reauthorization of the Patriot Act suggested the FBI interpreted the statute narrowly and used it sparingly:
[Section 215] allows us to go to the FISA Court and obtain an order to produce records that may be relevant to, say, a foreign intelligence investigation relating to somebody who’s trying to steal our secrets or a terrorist. Upon us showing that the records sought are relevant to this particular investigation—a specific showing it is—the FISA Court would issue an order allowing us to get those records. It’s been used over 380 times since 2001.
What the public didn’t know at the time was that the Justice Department and the FISA Court had established a secret interpretation of the law that significantly expanded the scope of what the FBI can collect with Section 215, despite the relatively small number of orders issued each year. At the same 2011 hearing, Sen. Ron Wyden (D-Ore.), who has access to this secret interpretation of the law due to his position on the Intelligence Committee but is barred by classification rules from revealing it, challenged Director Mueller:
I believe that the American people would be absolutely stunned—I think Members of Congress, many of them, would be stunned if they knew how the PATRIOT Act was being interpreted and applied in practice.
Sen. Wyden and Sen. Mark Udall (D-Colo.) have repeatedly complained over the last several years that Justice Department officials have made misleading public statements about the scope of this authority, even as they refused their demands to declassify this secret interpretation of law so that Americans could understand how the government is using Section 215. It took an unauthorized leak of the FISA Court order to give the public — and many members of Congress — their first glimpse of the government’s overbroad use of this Patriot Act authority.
Sen. Wyden and Sen. Udall have more recently challenged government claims that the bulk collection of telephone metadata under Section 215 has proven effective in preventing terrorist attacks, arguing they’ve seen no evidence the program “has provided any otherwise unobtainable intelligence.”
The ACLU filed a Freedom of Information Act (FOIA) request in 2011 to force the release of records relating to the government’s interpretation or use of Section 215, which is still being litigated. After the leak of the classified FISA Court order, the ACLU (a Verizon customer) filed a lawsuit challenging the government’s bulk collection of telephone metadata under the Patriot Act. This is not the first evidence of widespread abuse of this statute, however. Congress passed the USA Patriot Act just weeks after the 9/11 attacks, greatly expanding the FBI's authority to use surveillance tools originally designed for monitoring hostile foreign agents to secretly obtain personal information about Americans not even suspected of wrongdoing.
Congress made several provisions temporary. But when Congress first revisited the expiring provisions in 2005 there was very little public information regarding how the statute had been used. So in reauthorizing the Act, Congress required the Justice Department Inspector General to audit the FBI’s use of two Patriot Act authorities: National Security Letters(NSLs) and Section 215. Not surprisingly, five Inspector General audits conducted over the next several years confirmed widespread FBI abuse and mismanagement of these intelligence collection tools.
A 2007 Inspector General audit revealed that from 2003 through 2005 the FBI issued over 140,000 National Security Letters — secret demands for certain account information from telecommunications companies, financial institutions, and credit agencies that require no judicial approval — almost half of which targeted Americans. It found:
- • The FBI so negligently managed this Patriot Act authority it did not even know how many National Security Letters it had issued, which resulted in three years of false reporting to Congress;
• FBI agents repeatedly ignored or confused the requirements of the authorizing statutes and used National Security Letters to collect private information about individuals two or three times removed from the actual subjects of FBI investigations;
Sixty percent of the audited files did not have the required supporting documentation, and 22 percent contained at least one unreported legal violation.
- • FBI supervisors circumvented the law by using control files to improperly issue National Security Letters when no authorizing investigation existed.
In 2008, the IG released a second audit report covering the FBI’s use of National Security Letters in 2006 and evaluating the reforms implemented by the DOJ and the FBI after the first audit was released. The 2008 report revealed:
- • The FBI was increasingly using National Security Letters to gather information on U.S. persons (57 percent in 2006, up from 53 percent in 2005);
• High-ranking FBI officials improperly issued eleven “blanket National Security Letters” in 2006 seeking data on 3,860 telephone numbers, in an effort to hide that the data had been illegally collected with “exigent letters” (see below);
• None of the “blanket National Security Letters” complied with FBI policy, and several imposed unlawful non-disclosure requirements, or “gag orders,” on National Security Letter recipients.
Two other Inspector General audits reviewed the FBI’s use of Section 215 of the Patriot Act. Though this authority was used much less frequently than NSLs, the audits identified several instances of misuse, including an instance in which the FISA Court rejected a Section 215 application on First Amendment grounds, but the FBI obtained the records anyway without court approval. But in many ways these Inspector General reports gave the public a false sense of security by masking the real problem with Section 215, which was the incredible scope of information the FBI secretly collected under the FISA Court’s secret interpretation of the statute.
2. Exigent Letters and a Secret OLC Opinion
The Inspector General reports also revealed that the FBI routinely used “exigent letters,” which claimed false emergencies to illegally collect the phone records of Americans. In 2003, the FBI took the extraordinary step of contracting with three telecommunications companies to station their employees within FBI offices so that FBI supervisors could get immediate access to
company records when necessary.
The FBI obtained records regarding approximately 3,000 telephone numbers where no emergency existed and sometimes where no investigation was opened, in clear violation of the Electronic Communications Privacy Act (ECPA).
When the Inspector General discovered this abuse, FBI supervisors issued inappropriate “blanket” National Security Letters in an improper attempt to
legitimize the illegal data collection.
A particularly troubling aspect of the FBI’s use of exigent letters was the fact that it sometimes used them to obtain the communications records of journalists, in violation of their First Amendment rights. These improper data requests circumvented federal regulations and Justice Department policies established to protect press freedoms, which require the exhaustion of less
intrusive techniques and attorney general approval before obtaining subpoenas for reporters’ communication records.
The FBI initially admitted error with regards to the use of exigent letters and agreed to stop using them, though it tried to justify keeping the information it already collected. But in his final report on exigent letters, the Inspector General revealed that in 2009 the FBI developed a new legal interpretation of the Electronic Communications Privacy Act that allowed the FBI to ask telecommunication companies to provide it with certain communications records without emergencies or legal process.
The IG rejected this post-hoc re-interpretation of the law, so the FBI requested a Justice Department Office of Legal Counsel (OLC) opinion. The OLC
supported the FBI’s argument in a January 2010 secret opinion, with which the Inspector General was clearly uncomfortable. He recommended that Congress examine this opinion and “the implications of its potential use,” but there have been no public hearings to evaluate the manner in which the FBI exploits this new interpretation of the law.
The Justice Department has refused to release the OLC opinion in response to FOIA requests by media organizations and privacy advocates.
3. Warrantless Wiretapping and the FISA Amendments Act
On December 16, 2005, The New York Times revealed that days after the 9/11 terrorist attacks President George W. Bush authorized the National Security Agency to conduct warrantless electronic surveillance of Americans’ telecommunications in violation of the Fourth Amendment and the Foreign Intelligence Surveillance Act.
The FBI knew about this illegal surveillance practically from its inception and investigated leads it generated, but did nothing to stop it despite the criminal penalties associated with FISA violations.
Moreover, the FBI agents investigating the leads produced from the NSA program reportedly found them of little value, deriding them as “Pizza Hut leads” because they often led to delivery calls and other dead ends.
The Bush administration ultimately acknowledged the existence of a program it called the “Terrorist Surveillance Program,” which it said was designed to intercept al Qaeda-related communications to and from the U.S., but a follow-up article by The New York Times reported the program was larger than the officials admitted and involved a government “back door” into domestic telecommunications networks.
A 2006 article in USA Today alleged further that major telecommunications companies “working under contract to the NSA” provided the government domestic call data from millions of Americans for “social network analysis.”
When James Comey was promoted to deputy attorney general in December 2003, he evaluated the Justice Department’s legal support for one portion of this highly classified program, involving the bulk collection of domestic internet metadata, and found it lacking. To his great credit, he refused to sign a Justice Department re-certification as to the legality of the program and resisted, with the support of FBI Director Mueller, an intense effort by the White House to compel a gravely ill Attorney General John Ashcroft to overrule Comey.
It remains unexplained why Ashcroft, Comey, and Mueller apparently approved other parts of the Terrorist Surveillance Program, including the warrantless interception of Americans’ international communications and the collection of Americans’ telephone metadata.
The public pressure resulting from the 2005 New York Times article led the Bush administration to bring other portions of the NSA’s warrantless wiretapping program under FISA Court supervision in January 2007. But in May of that year an apparently adverse ruling by the FISA Court led the administration to seek emergency legislation from Congress so the program could continue.
Congress passed temporary legislation in August 2007 and then enacted the FISA Amendments Act in June 2008, giving the government the authority to seek FISA Court orders authorizing non-individualized electronic surveillance so long as it is targeted at foreigners outside the U.S. But questions about the scope and legality of these programs remain.
The excessive secrecy surrounding the FBI’s and NSA’s implementation of the FISA Amendments Act exacerbates the threat to Americans’ privacy posed by this unconstitutionally overbroad surveillance authority. The FISA Amendments Act is due to expire in 2015, but Congress must not wait to conduct the oversight necessary to curb abuse and protect Americans from unnecessary and unwarranted monitoring of their international communications.
About
In this section of their report on FBI abuses, the ACLU gives some context surrounding the controversial practices pursuant to section 215 of the PATRIOT Act, the thousands of exigent letters sent out by the FBI since 9/11, as well as the “secret” legal interpretations used to support these actions.
Q&A
Find answers to frequently asked questions about the song and explore its deeper meaning
- 3.Surveillance Powers Given and Taken
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