Constitution Daily

Smart conversation from the National Constitution Center

New documents show more details about phone surveillance

July 31, 2013 by Scott Bomboy


Formerly classified government documents on phone surveillance, released on the eve of a Senate hearing, show that Justice Department and the NSA took safeguards to protect phone and e-mail records, but there were “compliance issues” in bulk data-collection programs.

NSAlogoThe Obama administration took the unusual step on Wednesday of releasing three formerly classified documents that show some of its reasoning for ordering communications companies to surrender phone-call and e-mail records for American citizens.

Whatever compliance issues existed-which aren’t explained in the redacted documents-were resolved, said the government officials in a 2011 letter.

The documents were posted on the official website for the Director of National Intelligence on Wednesday morning, before hearings began in the Senate.

Link: Read The Documents

The three redacted documents won’t answers questions from scholars about the legal rationale about the surveillance programs, but they do show concerns about First Amendment and Fourth Amendment protections voiced by the Justice Department and the secretive Foreign Intelligence Surveillance Court.

Two documents are about the re-authorization of intelligence collection activities as part of the Patriot Act; the third document is an order from Judge Roger Vinson, under Section 215 of the Patriot Act, that requests “business records metadata” from a communications company.

The Washington Post reported earlier on Wednesday that the order was one that was regularly issued to Verizon every 180 days.

In the formerly classified letters to the Senate Intelligence Committee, then Assistant Attorney General Ronald Weich supplied an overview of how the National Security Agency collects basic phone and e-mail records for Americans, and how its policy safeguards made sure constitutional rights weren’t violated in any search process.

Weich’s letter also explains how such programs, which weren’t in place before the 9/11 terror attacks, could have help investigators track down Khalid al-Mihdhar, one of the hijackers, within the United States.

In addition, the court guidelines explain the criteria needed for a detailed search, or query, of the basic phone and e-mail records.

The documents state that the government has the ability to ask for limited phone and e-mail records under Section 215 of the USA Patriot Act and Section 402 of the Foreign Intelligence Act.

Business record data include incoming and outgoing phone numbers and e-mail address, along with the length of phone calls, but exclude the content of phone calls and e-mails, and e-mail subject lines.

The Justice Department and the FISC court both point to Fourth Amendment rulings that allow it to collect the basic data under “long-standing Supreme Court precedent” about pen register and trap-and-trace devices.

The Supreme Court decision of Smith v. Maryland (1979) found that basic phone numbers collected by phone companies weren’t subject to a reasonable expectation of privacy.

In addition, Judge Vinson said that he had reasonable grounds to believe investigations “are not being conducted soley upon the basis of activities protected by the First Amendment,” in his order in April 2013  that the communications company surrender its business records for customers.

The documents show that the NSA has very strict policies about how the business records were stored in databases, including which “technicians” had access to the data to prepare it to be included in potential searches.

In most cases, database searches could only be performed if a classified person had “reasonable articulable suspicion” (or RSA) to conduct a search and that search had to be approved by specially authorized Homeland Security Coordinators, or their superiors.

But in limited cases, some terms pre-approved by FISC could trigger a search without official review.

Despite the safeguards, there was an acknowledgment in the re-authorization letter to the Senate committee that there “were compliance issues in recent years.”

The Justice Department said that “a number of technical compliance and human implementation errors” in two unnamed bulk-collection programs were uncovered.

Investigations by the Justice Department, the NSA and the FISC court found the issues weren’t “intentional or bad faith” violations. They were reported to the Congress and the White House, and FISC-imposed safeguards resulted in “significant and effective changes” to the compliance program.

Critics of the government’s surveillance programs are asking for a more-detailed legal explanation of how the massive seizures of phone and e-mail records, however limited by data-handling procedures, don’t violate the Fourth Amendment.

Recent Constitution Daily Stories

The Next 10 Amendments: Limits on campaign spending?

Marking the passing of maybe the most-criticized president ever

Why Manning’s aiding the enemy charge was so important

Constitution Check: Do neighborhood watch volunteers have a right to carry a gun?

Sign up for our email newsletter