A report late Wednesday that a top-secret court authorized the National Security Agency to collect the telephone records of millions of Verizon customers should raise serious concerns about the scope of the Obama administration's domestic surveillance program and the threat it poses to citizens' privacy. The fact that the government can secretly order communications firms to turn over massive amounts of potentially sensitive information about customers without their knowledge calls into question the administration's commitment to transparency and the ability of the special court charged with overseeing such requests to protect citizens' rights.
According to a document leaked to The Guardian newspaper, the order to turn over call records to the NSA was requested by the Federal Bureau of Investigation in April and issued by the Foreign Intelligence Surveillance Court, which oversees applications for surveillance warrants against suspected terrorists and foreign intelligence agents inside the U.S. The FISA court was established in 1978 as part of the Foreign Intelligence Surveillance Act and was strengthened after the 2001 terrorist attacks. It directed Verizon Business Network Services, a subsidiary of Verizon Communications, to give the NSA all its call logs "between the United States and abroad" or "wholly within the United States, including local telephone calls," and to do so "on an ongoing daily basis."
A copy of the sweeping order obtained by The Guardian refers only to Verizon's business customers, and there is no way of knowing whether similar warrants were issued to AT&T; and other large telecommunications firms. It seems unlikely the government would limit such a massive information gathering to just a single division of one company, however, and it seems no stretch to assume that the evidence of widespread domestic surveillance that has surfaced so far may be just the tip of the iceberg.
The Obama administration today confirmed the authenticity of the document to The Guardian but refused to comment on whether other companies may have been involved. At the same time, the administration has strongly defended the National Security Agency's need to collect telephone records of U.S. citizens as part of the government's anti-terrorism effort. And officials stressed that the NSA had only collected the "meta-data" generated by Verizon users — call dates, times and durations — not the actual contents of individual conversations themselves. But given the ease with which phone numbers can be matched with names and addresses, that may be small comfort to citizens worried about their privacy. And the breadth of this order gives plenty of reason to worry that the government could also be eavesdropping on private communications. The fact that this order didn't cover that activity doesn't mean that some other one doesn't or won't.
The larger concern is whether the FISA court is merely a rubber stamp for whatever the administration wants to do regarding the monitoring of phone calls. Some members of Congress, including Democratic Sen. Mark Udall of Colorado, have criticized the FISA court's lack of transparency and called the domestic surveillance program an excessive government intrusion on privacy that most Americans would find shocking if they realized its full extent. But because the court acts in secrecy, there's no way for citizens to judge whether its rulings are justified or reasonable. In effect, the government is asking citizens to just "trust us" at a time when people's faith that government will do the right thing is increasingly in doubt.
Some have theorized that since the Verizon order was issued in April, it may have had something to do with the ongoing investigation into the Boston Marathon bombing, which occurred around the same time. But it could as easily have been prompted by something entirely different, such as an effort to counter industrial espionage by Chinese hackers or penetrate the networks of a suspected al-Qaida affiliate. Given the global scope of the program and the secrecy that characterized its execution, we may never know what prompted the government to request the FISA authorization, who it targeted or whether whatever threat it was meant to address has been eliminated.
The Obama administration came into office on a promise of greater transparency and a commitment to end the abuses committed under the Bush administration in the name of winning the war on terror. Last month, President Barack Obama rededicated himself to that goal, saying we cannot let the fight against terrorism define who we are as a nation. But this revelation, on top of news that the Obama administration had monitored communications of reporters from the Associated Press and Fox News in its effort to investigate leaks of sensitive information, belies those assurances. The scale of the domestic surveillance effort revealed this week and the secrecy in which it remains shrouded suggest there are still few limits on what the government believes it can do under the FISA law in the name of fighting terror, and that the laws protecting citizens' privacy and rights against unwarranted government intrusion are a lot less robust than most Americans think.