Tag: NSA

Categories
Privacy

AT&T aided NSA in spying on a massive scale: reports

Thanks to Edward Snowden and reporters at the Times and ProPublica, we now know that AT&T likely handed over to the National Security Agency billions of cellphone calling records over roughly two years beginning in August 2011.

According to documents reported Saturday by the Times, AT&T gave the NSA as many as 1.8 billion sets of data each day about who people called, when and for how long. Though Verizon, also provided the NSA access to similar metadata, AT&T appears to have been a partner without peer. According to ProPublica:

“While it has long been known that American telecommunications companies work closely with the spy agency, the documents we’ve published show that the relationship with AT&T has been considered unique and especially productive. One document described it as “highly collaborative” and another lauded the company’s “extreme willingness to help.”

It appears the calling records allowed intelligence agencies to run queries, relying on orders issued by a court pursuant to the Foreign Intelligence Surveillance Act, on calls that originated overseas but passed across AT&T’s network. In addition, the company reportedly gave the NSA billions of emails that flowed across its network in the dozen years that followed the 9/11 attacks.

AT&T also provided the NSA with access to high-capacity broadband lines that serve the United Nations in New York, according to the documents.

“We do not voluntarily provide information to any investigating authorities other than if a person’s life is in danger and time is of the essence,” Brad Burns, an AT&T spokesman, told ProPublica without elaborating.

Categories
Law

Senate has few options in Patriot Act extension, NSA phone records collection matters little in preventing terrorist attacks

The Senate is expected to convene Sunday to decide whether to permit the lapse of a surveillance program that authorizes the government to collect en masse  information about Americans’ telephone calls.

Amid news coverage of the debate, I reread relevant portions of reports by several panels within the executive branch that have assessed the effectiveness of the program, which, according to the panels, has never been instrumental in any investigation of terrorism.

At issue is Section 215 of the USA Patriot Act, which authorizes the National Security Agency to harvest telephone numbers and other details of calls made or received in the US. By its terms, Section 215 will sunset on June 1. A federal appeals court in New York ruled recently that the collection of so-called metadata in bulk as the government currently gathers it is illegal.

Though collection of telephone records by the government predates the September 11 attacks, the Patriot Act broadened the types of records the government can gather. As the appeals court found, the government has collected telephone metadata in bulk for at least the past nine years.

A report on the telephone records program published in January 2014 by the Privacy and Civil Liberties Review Board, an independent bipartisan agency established by law in 2007, concluded that Section 215 “has shown minimal value in safeguarding the nation from terrorism.” According to the board:

“Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA program.”

A report published roughly a month earlier by The President’s Review Group on Intelligence and Communications Technologies arrived at a similar conclusion. According to that panel:

“Our review suggests that the information contributed to terrorist investigations by the use of section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders. Moreover, there is reason for caution about the view that the program is efficacious in alleviating concern about possible terrorist connections, given the fact that meta-data captured by the program covers only a portion of the records of only a few telephone service providers.”

The Department of Justice’s Office of Inspector General, which reviewed the FBI’s use of Section 215 for surveillance generally over a two-year period starting in 2007, also found the provision to be of limited value in tracking terrorists. “The agents we interviewed did not identify any major case developments that resulted form the records obtained in response to Section 215 orders, but told us the authority is valuable when it is the only means to obtain certain information,” the Inspector General wrote in a report released May 22.

Based on the findings of these panels, it seems reasonable to conclude that no terrorism investigations have turned on bulk collection of telephone metadata by the government.

As a practical matter, the imminent sunset of Section 215 leaves the Senate with two choices: pass a measure that narrows the government’s authority to collect telephone call metadata or do nothing and allow Section 215 to expire. Of course, allowing Section 215 to lapse would not preclude Congress from legislating a replacement.

President Obama has called on senators to pass legislation that the House approved on May 13. That bill would authorize the NSA to access call records from telephone companies, which would be obligated to collect and store the data, after obtaining judicial approval.

Categories
Law

NSA phone records case shows the power of standing

Like many things, legal arguments can have an elegance about them.

Look no further than the arguments advanced by the plaintiffs in the lawsuit that led a federal appeals court to rule last week that the government’s collection of information about the telephone calls of Americans violates the USA Patriot Act.

The decision, which was reported widely, marks the first time an appeals court has declared the surveillance program that the National Security Agency has used to harvest telephone numbers and other details of calls made or received in the US for at least the past nine years to be illegal.

Besides invalidating the bulk collection of so-called metadata, the decision reveals some terrific lawyering by the American Civil Liberties Union, which filed the lawsuit on June 11, 2013, six days after The Guardian, reporting on leaks by former government contractor Edward Snowden, published an order from the FBI to Verizon directing the company to hand over metadata for all calls on its network that either began or ended in the US.

Under the Constitution, federal courts only have the power to resolve actual disputes between real parties. Thus, to sue, a plaintiff must show a concrete personal stake in the outcome of the case, a requirement known as standing. It’s not enough to dislike a law. You have to show injury.

For its lawsuit, the ACLU needed a Verizon customer whose phone records had been collected by the government. A customer who might claim that the government’s collecting his or her phone records harmed the plaintiff in some way. For that, the ACLU looked no further than its own offices.

As the ACLU charged in court papers, the organization was itself a customer of Verizon, which provided the ACLU with landline, Internet and wireless services throughout the period covered by the order. The NSA’s harvesting of the ACLU’s metadata exceeded the government’s authority and constituted a seizure in violation of the Fourth Amendment, the group charged.

In court papers, the ACLU described its standing as follows:

The information collected includes plaintiffs’ numbers, the numbers of their contacts, the time and duration of every single call they placed or received, and the location of plaintiffs and their contacts when talking on mobile phones. This information could readily be used to identify those who contact plaintiff for legal assistance or to report human-rights or civil liberties violations, as well as those whom plaintiffs contact in connection with their work. The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact plaintiff.

In other words, the ACLU communicates with people about matters that are sensitive or privileged and who depend, as the group noted, “on their ability to keep even the facts of their discussions” with the ACLU confidential.

The trial court determined that the ACLU had standing to file the lawsuit.

On appeal, the government took issue with the ruling, charging that the ACLU had failed to demonstrate that the NSA had reviewed any of the metadata collected from the group. Thus, the government charged, the ACLU had failed to allege an injury sufficiently concrete to support standing.

The US Court of Appeals for the 2nd Circuit disagreed, noting that the ACLU had alleged injury from the very collection of metadata, regardless whether the government reviewed the information.

“Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them,” wrote US Circuit Judge Gerard Lynch for the majority. “Appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the [Foreign Intelligence Surveillance Court]; and the records have been collected.”

The appeals court observed that the government admitted that when it searches its database its computers search all of the information stored in it. That means the government searches the ACLU’s records, which are among the millions of records stored in the database, electronically.

Finally, the court noted that the ACLU also had standing to challenge a violation of its right to freedom of association guaranteed by the First Amendment. As the court observed, the government’s forcing a group that’s engaged in advocating for the civil liberties of its membership to disclose its members can itself violate the right to associate freely.

“When the government collects appellants’ metadata, appellants’ members interests in keeping their associations and contacts private are implicated, and any potential ‘chilling effect’ is created at that point,” Lynch added.