NSA Phone Records: Why Is the Government Able to Obtain Your Phone Records, Anyway?


As the details of a secret government program to collect the phone records of a Verizon Wireless subsidiary come out, the public is asking legitimate questions as to the limits — or lack thereof — of the government's ability to spy on us.

The Foreign Intelligence Surveillance Court ruling — marked TOP SECRET//SI//NOFORN, a designation of utmost secrecy meaning that only U.S. citizens with the proper security clearance may see it — allows the National Security Agency (NSA) to obtain all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”

This does not include the content of those calls, but the document raises a lot of questions. What is the Foreign Intelligence Surveillance Court (FISC)? What does the Foreign Intelligence Surveillance Act (FISA) allow it to do? Can the government legally spy on me?

FISA was passed in 1977 as a check on the power of the executive after the Nixon administration was caught using federal intelligence mechanisms to spy on political opponents. It therefore "created a warrant procedure for foreign intelligence investigations so that there would no longer be any foreign intelligence surveillance without court oversight." It was repeatedly amended after 9/11, including in the PATRIOT Act, to incorporate terrorist groups and individuals.

This wasn't just any court oversight — the act created a new super-secret court, the FISC. In order to get FISC authorization to spy, "a significant purpose of the surveillance must be to gather foreign intelligence information — information about foreign spies, foreign terrorists, and other foreign threats — instead of evidence of a crime." So, the burden of proof lies not on evidence of wrongdoing, but evidence of being a "foreign power" or "foreign agent." Additionally, the individual(s) being spied on are at no point aware of it.

So, who's a foreign agent? Welcome to the murky gray area of legal bureaucracy in which justifications for questionable activities love to reside. A foreign power is vaguely described as a group owned or operating on behalf of a foreign government or engaged in "international terrorism." A foreign agent is anyone who works for a foreign government, spies on the U.S., or — importantly — engages or plans to engage in "international terrorism."

Careful on that last one. How are we defining "international terrorism?" Well, there's the standard "violent acts dangerous to human life that are a violation of the criminal laws of the United States." But there's also activities that "appear to be intended" to intimidate civilians or influence government policy by use of violence or intimidation. Sounds extremely vague and largely open to interpretation. This might not be such a big deal if the people tasked with interpreting this weren't operating under extreme secrecy.

However, let's not forget about Congress, which has oversight over the process. In fact, "For several years, two Democrats on the Senate Intelligence Committee, Senator Ron Wyden of Oregon and Senator Mark Udall of Colorado, have been cryptically warning that the government was interpreting its surveillance powers under that section of the Patriot Act in a way that would be alarming to the public if it knew about it." In fact, they wrote a letter to Attorney General Eric Holder (this guy can't catch a break) in which they said that "most Americans would be stunned to learn of the details of how these secret court opinions have interpreted section 215 of the Patriot Act." Section 215 of the Patriot Act amended FISA, allowing the government to gather intelligence from U.S. and non-U.S. citizens.

It seems as if the Obama administration — and Bush's before him — are using the complicated, secret nature of this legislation to essentially spy on whomever it can provide a justification for. Since the wording is so vague, Americans are (and should be) nervous about the power afforded to government agencies. Congress should use this opportunity to introduce new legislation putting significant checks on the power that FISA and subsequent amendments afford, which was ironically the purpose of the original FISA being passed in the first place.