By SIOBHAN GORMAN And JENNIFER VALENTINO-DEVRIES
Wall Street Journal
Updated June 6, 2013, 9:45 a.m. ET
WASHINGTON—The National Security Agency is obtaining a complete set of phone records from all Verizon VZ +2.36% U.S. customers under a secret court order, according to a published account and former officials.
The account provides fresh evidence that NSA’s far-reaching domestic surveillance effort has continued after Congress passed a law five years ago to institutionalize a post-9/11 warrantless surveillance program.
The revelation of the secret order appears to lift the veil on a broad NSA domestic collection program under way, which former government officials say represents just a sliver of the domestic data NSA is taking in and which includes all types of communications data, such as emails and records of Internet browsing. The data collection began after the Sept. 11, 2001, attacks, according to several former intelligence officials.
Verizon is required to provide NSA with “all call detail records” of customers, including all local and long-distance calls within the U.S., as well as calls between the U.S. and overseas, according to a court order labeled “top secret” published Wednesday by the Guardian newspaper.
Verizon officials declined to say whether the order appearing on the Guardian’s website is authentic.
Verizon’s traditional landline business connects about one billion calls a day. Verizon Wireless has nearly 100 million retail customers. Verizon spokesman Ed McFadden declined to comment, as did officials with the NSA.
A senior Obama administration official Thursday called the practice a “critical tool” in protecting the public from terrorists.
The information collected “allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States,” the senior Obama administration official said in defending the practice.
It has long been known that NSA was collecting large amounts of telecommunications information. The Wall Street Journal reported in 2008 that NSA was obtaining vast amounts of domestic phone call data, such as phone numbers and cellphone locations of calls in the U.S., as well as email and other electronic data. The 2008 report also described additional streams of data NSA was collecting, including financial and travel data.
The fresh revelations, however, are likely to reignite a contentious debate that last flared after the government admitted several years ago that it had been conducting the warrantless surveillance program.
What is unusual about Wednesday’s revelation is the apparent order that was issued by the secret Foreign Intelligence Surveillance Court, whose findings are rarely made public. It is the first known unauthorized publication of one of its orders.
The order is dated April 25, 2013 and expires on July 19, 2013. It is slated for declassification in 2038.
Civil liberties groups sounded alarms Wednesday in the wake of the account.
“It’s analogous to the FBI stationing an agent outside every home in the country to track who goes in and who comes out,” said Jameel Jaffer, deputy legal director for the American Civil Liberties Union. “It provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.”
Sens. Ron Wyden (D., Ore.) and Mark Udall (D., Colo.) have warned for years that the government was overreaching in its interpretation of surveillance powers. Both Senators have been barred from revealing details of what they know because the information is classified.
On Wednesday, Sen. Udall said he couldn’t discuss details of the report on the apparent FISA order for Verizon. However, he said, “This sort of wide-scale surveillance should concern all of us and is the kind of government overreach I’ve said Americans would find shocking.”
The order as divulged Wednesday also raises questions about the level of vetting done by the FISA Court. In the most recent report to Congress, the government reported that the court didn’t deny any of the 1676 applications by the government to conduct electronic surveillance.
The order as posted makes clear the extent to which NSA, once confined to sifting through foreign intelligence, has gained access to enormous amounts of Americans’ communications data. It also reveals the mechanics of how the orders are issued.
The order doesn’t compel the company to provide the content of any of the communications, such as the inside of an email message or a phone conversation. Nonetheless, the data is incredibly useful for investigators because it provides information about who is communicating, through what medium and where they are located.
In the wake of the 9/11 attacks, NSA expanded a secret program called Stellar Wind to establish standing orders with large telecommunications providers and Internet service providers to provide all communications data on their customers, said Thomas Drake, a former top NSA official, in an interview Wednesday.
The NSA’s operations cover “every major telecom and every major ISP,” Mr. Drake said. “I knew this in the fall of 2001. I did everything I could inside the government to reveal it, including to Congress.”
Mr. Drake said call records are just a fraction of the data NSA is collecting, which also includes data about emails and data on any type of electronic communication, which includes iPads, Kindles and other mobile devices. All can be used to track the owner’s location. “It’s a total violation of the Fourth Amendment,” he said.
The Fourth Amendment protects against unreasonable searches and seizures.
The Obama administration takes the view that its surveillance program differs from those set up under the Bush administration. Now, there is a second branch of government, including a judge, that weighs and approves such requests. The surveillance program is vital to national security efforts, officials have argued.
Lawyers continue to debate whether collecting so-called metadata is an invasion of privacy. The FISA order depicted by the Guardian shows the government is obtaining the information under a secret order, which would give it stronger legal foundation. The order doesn’t provide any legal reasoning as to why such extensive data collection wouldn’t be an unreasonable search or seizure.
The document in question is described as an “order requiring the production of tangible things.”
In 2005, Congress said the standard for obtaining such records from businesses was “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to” an international terrorism investigation.
The standards required for such orders have drawn criticism from civil-liberties groups because they are below the standard for search warrants, usually defined as “probable cause” to believe a crime has occurred.
The court-approved records collection differs from another broad surveillance program, conducted without court warrants, that the Bush administration called the Terrorist Surveillance Program. President George W. Bush in 2006 acknowledged the program, and a year later, the administration said it would submit the program to the Foreign Intelligence Surveillance Court.
In the wake of the 2005 revelation of the NSA’s warrantless surveillance program, Congress for three years debated the legality of NSA’s surveillance, though that debate focused largely on the activity the government admitted to, which was monitoring calls between the U.S. and abroad.
In 2008, Congress amended the law governing warrants issued by the FISA Court to permit it to issue broad warrants to collect communications of categories of people.
That debate largely ignored the role of the highly secretive NSA in analyzing data about electronic communications, collected through little-known arrangements that can blur the lines between domestic and foreign intelligence gathering.
Congress voted last December to extend the expanded FISA surveillance law for another five years.