I'm still trying to put together the whole PRISM thing, but it looks like the information originally published by the WaPo and Guardian was flat wrong in quite a few ways. I need to pull together more sources to actually get a good model of it though.
Somewhat clearer is the phone records being obtained through a FISA court order.
The order requires Verizon to turn over it's complete call records database to the NSA. This is a recurring order, renewed every 90 days since at least 2007. These records are essentially call metadata; number A called number B at time X from location Y. They don't contain the content of the calls and to my knowledge there is no way to collect such knowledge.
This information is not traditionally viewed as private. May sound odd, but under
Smith v. Maryland pen registers (devices that log but don't record calls made from a phone) are legal to use without a warrant. As such the government can legally build such call records on a given phone without any fourth amendment issues.
The expansion of that to requesting the complete logs of Verizon under a FISA order is less clear.
This post covers part of the important question, along with
this follow up;
Because we have only the order itself, not the application that underlies it, we don’t know the government’s exact legal theory here. But I have a hard time imagining the application that could have produced it without authorizing programmatic collection of just about any data for any investigative purpose at all. Section 215, codified in law as 50 U.S.C. § 1861, allows the government to apply to the FISA court for an order for production “of any tangible things . . . for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities. . . .” To acquire such an order, the government does not have to do much—just as it doesn’t have to do much in a criminal investigation: It merely has to offer, in pertinent part, “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation . . . to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”
So presumably, the theory would have to be that the “tangible things” here are the giant ongoing flood of data from the telecommunications companies and that they are “relevant to an authorized investigation,” perhaps of Al Qaeda, “to protect against international terrorism.” That reading seems oddly consistent with the statutory text, which may be why the intelligence committee leadership seems so comfortable with the program.
This is a very expansive theory as far as FISA goes. You could extend this reasoning to gathering pretty much any information that may theoretically be useful in the future.
That said, it is worth noting that the
DNI statement regarding the data collection talks about minimisation procedures that apply to the information gathered. That is, the government can create the database but can't use it unless they meet a legal standard;
By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.
According to
Orin Kerr this doesn't seem to be the legally required standard (see again Smith v. Maryland) but rather a more stringent requirement applied by the FISA courts. They seem to be treating a search of the database (of potentially non-private data) as a
Terry stop-and-search. This makes sense to me given the power of such searches to reveal information that a single pen register type record might not. Searches of such a database
should be more strictly protected than the information in isolation.
So to break this down again, the government is collecting all possibly relevant data then only reviewing that data that becomes relevant as opposed to gathering only the relevant information.
Thinking about this from a spycraft point of view, this is incredibly attractive. Let's say you want to track a certain set of calls to try to pin down a certain terrorist group. If you had to issue a court order for such information to be passed over every time you would be revealing what you know about the group, even if only to the telephone company and under apparent secrecy restrictions (the same secrecy restrictions this particular order was under...). The chance of where you were looking being revealed might not be huge, but it's there.
If instead you have the database internal already and only have a general renewal every few months then you have less chance of a leak (like this one) blowing open ongoing surveillance programs. This revelation says a lot about how the US does it's surveillance and what sorts of tradecraft it is working to defeat, but nothing about any actual operations.
It does require a great deal of trust in the government holding such a database both for them not to abuse it and to keep it secure (although in this case only as secure as the teleco that originally held it). In this case all three branches have oversight (although FISA courts rather than general courts), so plenty of theoretical checks and balances working to keep them honest. But I doubt that's enough for many people.
It's worth noting that this whole thing appears to have replaced the original
Bush warrantless wiretapping scheme. The timeline matches and such a system would achieve many of the stated goals of the original overreaching scheme with far fewer civil liberty or fourth amendment problems.
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