The Verizon FISA Court Order, the PRISM Program, And a Whirlwind Of Commentary: A Look Back At An Eventful Two Days

Late Wednesday night, news from The Guardian broke of a leaked top secret order from the Foreign Intelligence Surveillance Court (FISC), which granted the National Security Agency (NSA) “on going daily” access to all "call detail records" (or “telephony metadata”) in the possession of Verizon Business Network Services for a three-month period. Thursday evening, The Washington Post released presentation slides detailing the NSA and FBI’s PRISM Program, a top-secret program that enabled these government entities the ability to extract mass amounts of stored data maintained by nine major US internet companies. Through source materials, commentaries, and the articles themselves, I've attempted to chronicle the events over the past two days.


Wednesday, June 5, 2013

The FISA Court Order Breaks . . .

Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, The Guardian: Greenwald reports of a leaked FISA Court Order, which grants the NSA  3-month access to Verizon Business Network Services' daily phone metadata. The FISA Court Order is authorized under the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1861 (better known as Section 215 of the USA PATRIOT Act).

Responses To The Greenwald Article Begin . . .

Andy Greenberg, NSA's Verizon Spying Order Specifically Targeted Americans, Not Foreigners, Forbes: Greenberg provides some of the first commentary on the leaked FISA Order, explaining the significance of the NSA specifically targeting Americans.

Charlie Savage & Edward Wyatt, U.S. Is Secretly Collecting Records of Verizon Calls, The New York Times: Savage and Wyatt comment on the FISC Order, explaining that the “TOP SECRET//SI//NOFORN” mark on the Order refers to "communications-related intelligence information that may not be released to noncitizens . . . mak[ing] it among the most closely held secrets in the federal government."

Orin Kerr, Is Verizon Turning Over Records of Every Domestic Call to the NSA?, The Voloch Conspiracy: Professor Kerr, Professor at George Washington University and computer crime expert, comments on the Leaked FISA Court Order, calling it "potentially a huge story," and provides some doctrinal points as to the scope of Section 1861.

Thursday, June 6, 2013 
 
Responses To Greenwald's Article Continue . . .

Marc Ambinder, U.S. Responds to NSA Disclosures, The Week: Ambinder provides the talking points released by a "senior government official" in response to the leak of the FISA Court Order. The comments refers to the Orders as "classified," but states that the information described in Greenwald's article "has been a critical tool in protecting the nation from terrorist threats to the United States."

From the Desk of Randy Milch, Verizon Policy Blog: While Verizon has been generally silent since the leak, Verizon's Policy Blog releases a letter from Randy Milch, Verizon's Vice President and General Counsel, claiming "no comment" while referencing the Order's "nondisclosure requirement."

Chairman Dianne Feinstein (D-Calif.) & Vice Chairman Saxby Chambliss, Feinstein, Chambliss Statement on NSA Phone Records Program, Press Release: Senate Intelligence Committee Chairman Dianne Feinstein and Vice Chairman Saxby Chambliss release a joint statement commenting on Greenwald's article, claiming that "[t]he executive branch’s use of [its authority under the Foreign Intelligence Surveillance Act] has been briefed extensively to the Senate and House Intelligence and Judiciary Committees, and detailed information has been made available to all members of Congress prior to each congressional reauthorization of this law."

Representative Jim Sensenbrenner (R-Wis 5th), Letter to Attorney General Eric Holder: Rep. Sensenbrenner, considered the Republican author of the PATRIOT Act, writes a letter to the Attorney General stating that the FISA Court Order is "extremely disturbing." Rep. Sensenbrenner would go on to state that he does not believe the Order "is consistent with the requirements of the [PATRIOT] Act."

Andy Greenburg, Senators Grill Attorney General Holder On Whether Verizon Surveillance Targeted Them, Too, Forbes: Greenburg reports that, while testifying before Congress on budgetary matters, Attorney General Eric Holder is questioned on the leak. Senator Mark Kirk (R-Ill.) is reported as asking the Attorney General, “Can you assure us no members of the Capitol building were monitored?” The Attorney General responds by saying he "wouldn’t be able to answer that question in an 'open forum.'"

Stewart Baker, The FISA Court Order Flap: Take a Deep Breath, Skating on Stilts Blog: Baker defends the legality of the FISA Court Order, explaining that to get such an order, "[t]he government had to persuade up to a dozen life-tenured members of the federal judiciary that the order [was] lawful." Baker additionally provides multiple scenarios as to why such an order would be so sweeping and so broad.

The PRISM Program Breaks . . .

Barton Gellman & Laura Poitras, Documents: U.S. Mining Data From 9 Leading Internet Firms; Companies Deny Knowledge, The Washington Post: In a story that looks to be released in tandem with another Guardian article, Gellman and Poitras provide a "top-secret document" that details "PRISM," a NSA and FBI program that allows these government entities access "into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track one target or trace a whole network of associates." The companies include Google, Facebook, Microsoft, Yahoo, Skype, YouTube, and Apple. 

Responses Continue To The PRISM Program & FISA Court Order . . .

Orin Kerr, NSA and FBI Have Real-Time Access to Major U.S. Internet Companies to Track Individuals Outside U.S., The Volohk Conspiracy: Professor Kerr comments on the PRISM Program. In his comments, Professor Kerr provides an important "caveat," stating that "the NSA only pulls out the data when  . . .  a preponderance of the evidence indicates that the person is outside the United States."

Director James R. Clapper, DNI Statement on Recent Unauthorized Disclosures of Classified Information, Press Release: Director of National Intelligence James Clapper (who will likely need to make another statement now that PRISM has been disclosed) issues a press release in light of the FISA Court Order leak. Director Clapper states that "[t]he unauthorized disclosure of a top secret U.S. court document threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation."  

Amir Efrati, Jessica E. Lessin & Jennifer Valentino-Devries, Tech Firms' Data Is Also Tapped, The Wall Street Journal; Following on the heels of Director Clapper's statements, Efrati, Lessin, and Valentino-Devries confirm that the White House "acknowledged the existence  . . . of a secret National Security Agency program dubbed Prism." The article claims that the disclosure was by a "senior administration official" who clarified that the Program "targets only foreigners and was authorized under U.S. surveillance law." 

Hopefully this post will provide you with some of the key developments of yesterday's PRISM Program and FISA Court Order leaks. The true impact that these stories may have, however, will most assuredly take longer than two days to develop.

[Author's Note: Speaking of developments  . . . Later amendments to Gellman's article and disclosures by these internet companies indicate that the accessed company data was (or is) not "direct." This post has been edited to reflect the adjustment.]