What is the NSA actually doing, anyway?


Chairman and Vice Chairman of the U.S. Senate Select Committee on Intelligence, Sen. Dianne Feinstein (D-CA) (L) and U.S. Sen. Saxby Chambliss (R-GA) (R), speak to members of the media about the National Security Agency (NSA) collevting phone records June 6, 2013 on Capitol Hill in Washington, DC. According to reports, the NSA has collected phone data, under a provision of the Patriot Act, of Verizon customers in the U.S.


Alex Wong

News that the National Security Agency has been pulling millions of Americans' Verizon phone records has, frankly, surprised very few people, both in the United States and around the world.

"The only people who are shocked that the US government conducts quasi-legal spying on citizens are people I don't know," one American-Libyan activist tweeted.

The Associated Press also reported that the seizure of records likely involved multiple US phone companies and both business and residential numbers, according to a former US intelligence official familiar with the NSA program says. The court order involving Verizon is the only one that has been made public so far.

But what exactly has the NSA done? And what do they have the legal grounds to do? Let's take a look.

The Patriot Act: Where it all started

There has been a lot of finger-pointing at the Patriot Act, plenty of it deserved. The act and other legislation passed after the 9/11 terrorist attacks on the US drastically changed the face of American national security in service of the "War on Terror." 

The Justice Department contends, "While the results have been important, in passing the Patriot Act, Congress provided for only modest, incremental changes in the law.... Congress simply took existing legal principles and retrofitted them to preserve the lives and liberty of the American people from the challenges posed by a global terrorist network." 

But many would argue otherwise.

In 2011, the US Senate Intelligence Committee met over concerns that the Justice Department's interpretation of Section 215 of the Patriot Act — which allows the seizure, without a warrant, of "any tangible things" that may relate to terrorist activities — was "breathtakingly broad." 

There's also the fact that phone records and logs are considered “metadata” and fall under the umbrella of what government agencies can seize without a warrant, anyway, Time Magazine pointed out.

The court order that compelled Verizon's handover of data also forbade the company from telling anyone about it, saying: "No person shall disclose to any other person that the FBI or the NSA has sought or obtained tangible things under this Order." Well then. 

Wiretapping vs. Surveying phone records: An important distinction

The word "wiretapping" instantly conjures up images of either Watergate or of government agents in control rooms, listening to audio recordings of intimate, banal, or suspicious — in all cases, private — conversations.

But take note: wiretapping and surveillance are not the same. Legally, wiretapping is defined as "a form of electronic eavesdropping accomplished by seizing or overhearing communications by means of a concealed recording or listening device connected to the transmission line." 

The reality of the Verizon handover is different. This is how the Guardian, which broke the NSA story, explained it: 

The secret Foreign Intelligence Surveillance Court [FISC] granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19. Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered. 

Yes, millions of US citizens' phone records are being collected "indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing" as we speak. But, as far as we know, no one is listening to the calls. 

The skepticism remains rampant, however. As Esquire's political blogger Charles P. Pierce noted, "We are supposed to be reassured, I guess, that the contents of the phone calls apparently are not covered by the order, but that requires you to believe the government and the NSA, and I'm not entirely sure I do right now."

The issue, as the New Yorker's Amy Davidson reported, is at least in part the fact that Americans don't know about the "secret court opinions" on Section 215 of the Patriot Act that have allowed these sweeping seizures of information to occur. Davidson quoted Senators Ron Wyden and Mark Udall's 2012 letter to Attorney General Eric Holder about their concerns: 

"As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows," the senators wrote. "This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says." 

In the case of Verizon's court order, the "library records provision" aspect of Section 215 has come into play, as the AP reported:

Because it allowed the government to seize a wide range of documents, including library records. Under that provision, the government must show that there are "reasonable grounds to believe" that the records are relevant to an investigation intended to "protect against international terrorism or clandestine intelligence activities."

However, the exact definition of what constitutes "relevant" information is difficult to define.

So, what will the NSA do with the records? 

Collecting the records is one thing — being authorized to do anything with them, another. The Week gives an excellent explanation of how this massive chunk of data gets used.

The NSA is free to seize swathes of "tangible things" like phone records if it can show there's a good chance they may need them for a future case. But, wrote Marc Ambinder, they "can't USE the data unless there is a specific reason, a specific tip, a tip that has been — in theory, according to the rules as I understand them — certified by the Attorney General." 

The NSA would need to get approval from a special Foreign Intelligence Surveillance Act court to analyze or listen to specific portions of the records they've collected.

The Week considered the best-case scenario. "If they only compile these transactional records and don't do anything with them, and they faithfully honor this distinction, then the scale of the actual surveillance is not necessarily harmful, although it feels heavy."

That's little consolation for the millions wondering what the NSA now knows, or could come to know, with the Verizon records.

[View the story "No one is shocked about the NSA's surveillance of Verizon customer records " on Storify]