June 6, 2013
The media were all abuzz starting late last night with the announcement by the U.K.-based newspaper The Guardian that the U.S. government has been obtaining millions of phone records from Verizon, one of the largest telecommunications companies in the country.
These records have been provided by Verizon since the Foreign Intelligence Surveillance Court (FISC) issued an order on April 25 of this year that requires the mobile carrier to give the National Security Agency (NSA) – “on an ongoing daily basis” until the order expires on July 13, 2013 – all “telephony metadata” created by Verizon.
What is “telephony metadata?”
Thankfully, it doesn’t include the actual content of calls made by or to Verizon customers.
Unfortunately, it does include quite a bit of other information:
- “comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.)”
- each call’s trunk identifier
- each call’s telephone calling card numbers, and
- the time and duration of each call.
What does all of this mean?
The first piece of information allows the government to know which numbers Verizon customers are calling and which numbers are calling them; which mobile network was used for each call (on both ends of the call); which specific phones were used during the calls; and the names of the subscribers on both ends of each and every call (note the “etc,” meaning there’s likely more information provided that wasn’t spelled out in the order).
The second piece of information – the “trunk identifier” – allows the government to identify the communications connection point (usually a cell phone tower) used to access the carrier’s network. This allows the government to identify the location of each call.
If a caller changed geographic locations during the call and thus used a different “trunk,” this information allows the government to track the caller’s movements during each call.
The third piece of information, the telephone calling card numbers, seems innocuous enough – except that the government will likely be able to obtain other information associated with that calling card, such as other instances of its use, where and when it was purchased, what forms of payment were used, and (potentially) the identity of the person who purchased it.
Finally, the government’s use of the last piece of information is self-explanatory: it can see what time and how long each caller speaks with other individuals.
So while the government doesn’t know what Verizon’s customers (and those who speak with them) are saying, the government does know the identity of every person whom an individual contacts, how long they spoke, and their respective location at the time of the call.
The government can then aggregate and organize this information to create profiles for any number of individuals that interest it (or all individuals, if the government so desires).
The questions on everyone’s minds at this point are:
“Is this constitutional?” and
“Will the government get away with this?”
The answer to the first question is almost certainly, “no.”
First off, it’s unlikely supported by the very statutory authority cited by the NSA to justify the order for the document production, Section 215 of the USA PATRIOT Act.
Section 215, the so-called “business records” provision, allows the FBI or a “designee” thereof to request an order from FISC requiring the production of any documents and records “for an investigation to obtain foreign intelligence information” or “to protect against international terrorism or clandestine intelligence activities”
The provision only allows investigation of a “U.S. person” when it is “not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”
It’s extremely improbable that every single one of the millions of Verizon customers has some connection to “international terrorism or clandestine intelligence activities,” or that their records need be investigated to “obtain foreign intelligence information.”
True, there are likely a few individuals out of the millions that the government is currently spying on that actually would be relevant to the relevant subject matter.
But everyone else is just conducting “activities protected by the first amendment to the Constitution.”
Although the government would undoubtedly argue that these individuals need be investigated to provide as complete a “foreign intelligence information” investigation as possible, it’s pretty obvious to any rational person that the government is just collecting information on everyone and starting the investigation after getting it – instead of before.
Thus, the government is actually getting the vast majority of this information “solely upon the basis of activities protected by the first amendment to the Constitution.”
And while this government surveillance certainly runs afoul of the First Amendment and probably all the individual rights protected thereunder, this activity also almost certainly grossly violates of the Fourth and Fifth Amendments.
Sadly, the sheer magnitude of the unconstitutionality of the government’s conduct likely won’t stop this surveillance from continuing and from there being a lack of repercussions of any kind.
After all, it’s doubtful that this order was the first or only such demand for information made on a telecommunications company. Instead, it’s almost certain that the government has been doing this since the USA PATRIOT Act was reauthorized in 2005, and with every telecommunications company operating in the U.S. (not just Verizon).
It’s just that, since all of the orders are made confidentially, this is the first one that was made public.
To be sure, lawsuits will be filed over this activity. But considering the highly secretive nature of these orders, it will be difficult to even show that these orders exist – and even if that happens, courts rarely second-guess the government on purported national security matters.
If there is enough public outcry, Congress may vote to repeal Section 215. There would have to be a lot of public outcry, though, since the political interests in keeping the provision in place is extraordinarily strong.
In the meantime, you can either stop using a mobile phone or accept the fact that the government is going to know everything about the calls you make for the foreseeable future.