Surveillance Order of Unprecedented Proportions Revealed

Published On June 6, 2013 | By Marc Zwillinger | General
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SURVEILLANCEAs I blog the latest developments in the surveillance world, I admit to being a little bit shocked at yesterday’s leaked revelations.   In short, the FISA court issued an order compelling Verizon Business Services to turn over to the NSA all metadata for all calls placed entirely within the U.S. or between the U.S. and any foreign country. This Order appears to apply to both historical records and to all future calls made between April 15, 2013 and July 19, 2013.  In other words, calls that are occurring right now, tomorrow, and the next day.  This is not an order targeted at a single customer, or a group of customers, or even all customers in a geographic region.  This Order encompasses every single customer to whom Verizon Business Services provides telephone service.  That scope is potentially staggering.  I say potentially, because this order may be limited only to business customers of Verizon, which is likely a smaller subset then, say, all Verizon residential or wireless customers, but still makes up a large undifferentiated mass of calls.

This Order raises several issues.   First, ongoing surveillance of this type would normally be done under the authority of a pen register or trap and trace order under 50 U.S.C. § 1842.  That type of order has particularity provisions under which the government is required to identify the name, address and phone number of specific individuals subject to the order. This leaked order, however, was issued as a Business Record Order under 50 U.S.C. § 1861, which has typically been associated with stored records that already in existence at the time of the order, and not ongoing surveillance.  This may be precisely what certain members of Congress were alluding to when they warned that the government was interpreting FISA in a way that would shock Americans. Specifically, in 2011, Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) wrote, “When the American people find out how their government has secretly interpreted the Patriot Act, they are going to be stunned and they are going to be angry.”  The legal basis for this order is questionable at best.

Second, how did the government convince the court to issue such an Order?  And why didn’t Verizon challenge it under the procedures set forth in 50 U.S.C. § 1842(f)?  This seems ripe for challenge both in the scope of the Order, and in the use of a process designed for historical records to engage in ongoing surveillance.  Without a challenge, the FISA court’s authority to review these types of orders is surprisingly limited.

Third, why just Verizon Business Services?  Did the court reject the government’s effort to impose this order on all of Verizon’s home and wireless customers?

Finally, and perhaps most importantly, what does the government think may happen in these 3 months that justifies such an order.  One possible theory is that this could have been merely an instant response to intelligence the NSA or FBI received.  One would like to think, however, that the government would use the emergency disclosure provisions of FISA for such circumstances and not start surveillance on all Verizon Business customers for 90 days in the hopes of catching something.  And if this type of Order was indeed what Senator Wyden was referring to in 2012, this was not likely the first time the government has issued an order like this.

One thing is for sure, this leaked Order is going to diminish the attention being paid to the surveillance of AP reporters for a little while.

About The Author

Marc is the founder and managing member of ZwillGen PLLC and has been regularly providing advice and counsel on issues related to the increasingly complex laws governing Internet practices, including issues related to Electronic Communications Privacy Act (“ECPA”), the Wiretap and Communication Acts, privacy, CAN-SPAM, FISA, spyware, adware, Internet gambling and adult-oriented content. He also helps Internet Service Providers and other clients comply with their compliance obligations pertaining to the discovery and disclosure of customer and subscriber information.

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