NPR has learned that the Obama administration, under pressure to lift a cloak of secrecy, is considering whether to declassify a court order that gives the National Security Agency the power to gather phone call record information on millions of Americans.
The document, known as a "primary order," complements a shorter Foreign Intelligence Surveillance court document leaked to The Guardian newspaper earlier this month. That document revealed the U.S. government had been asking Verizon Business Network Services Inc. to turn over, on a daily basis, phone call records for its subscribers, for 90 days.
Since then, senior members of the Senate Intelligence Committee have said the program has existed in some form since 2006 and involves a long list of telecommunications companies, not just the Verizon business unit.
The still-secret primary order provides more information about the program, spells out specific limits on government authority and includes safeguards to protect the privacy of U.S. citizens, a senior administration official said.
Director of National Intelligence James Clapper says the program operates under Section 215 of the Patriot Act, but civil libertarians have likened it to "snatching the address book of every American." The American Civil Liberties Union filed a lawsuit this week to challenge its constitutionality under the Fourth Amendment as an unreasonable search and seizure.
The administration has been under pressure to release more information from an unusual bipartisan coalition in Congress, as well as lawyers who work on privacy and national security. At an American Constitution Society panel in Washington on Friday, former government officials and privacy law experts exhorted the intelligence community to share its broad legal interpretations of the Patriot Act, its procedures for "minimizing" harm to Americans, and still secret findings by the FISA court.
University of San Francisco law professor Susan Freiwald told the ACS audience that the dragnet phone-data collection program was "quite clearly unconstitutional under the Fourth Amendment" and that gaping loopholes in the law, advances in technology and weak oversight by Congress only added to the problem. Based on what's currently known, former Justice Department lawyer Mark Eckenwiler said, the administration's broad interpretation of the Patriot Act for its phone-collection program is "highly questionable."
But FBI Director Robert S. Mueller told the House Judiciary Committee on Thursday that under a 1979 ruling in Smith vs. Maryland, the Supreme Court found people have no reasonable expectation of privacy when it comes to phone-call metadata. The information does not include the content of phone calls. Instead, the NSA database contains the number of the caller, the number of the recipient of the call, the duration of the call and the time of the call.
The senior administration official told NPR that the phone-call records can be kept only for five years and that the NSA does not use that program to keep data that would allow authorities to track where people are located when they're using their phones. The source said even though the NSA may have that power to collect the geolocation data under the law and the secret court's rulings, the NSA does not use it.
To query the huge pools of metadata, authorities say they need to have a reasonable, articulable suspicion of an association with a terrorism organization. That standard is approved by the FISA court but the court does not review each query. Rather, the senior administration official said, the queries are documented and a sample of them is audited by the Justice Department's National Security Division and the Director of National Intelligence.
The official added that the number of people who can perform the searches and the number of people who can review them is limited. And the reasonable suspicion determination must be reauthorized after a certain unspecified period, to prevent searches that could go on forever.