Late on Wednesday, the Guardian newspaper confirmed what EFF (and many others) have long claimed: the NSA is conducting widespread, untargeted, domestic surveillance on millions of Americans. This revelation should end, once and for all, the government's long-discredited secrecy claims about its dragnet domestic surveillance programs. It should spur Congress and the American people to make the President finally tell the truth about the government's spying on innocent Americans.
In a report by Glenn Greenwald, the paper published an order from the Foreign Intelligence Surveillance Court (or FISC) that directs Verizon to provide “on an ongoing daily basis” all call records for any call “wholly within the United States, including local telephone calls” and any call made “between the United States and abroad.”
In plain language: the order gave the NSA a record of every Verizon customer’s call history -- every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for the phone and call -- from April 25, 2013 (the date the order was issued) to July 19, 2013. The order does not require content or the name of any subscriber and is issued under 50 USC sec.1861, also known as section 215 of the Patriot Act.
There is no indication that this order to Verizon was unique or novel. It is very likely that business records orders like this exist for every major American telecommunication company, meaning that, if you make calls in the United States, the NSA has those records. And this has been going on for at least 7 years, and probably longer.
This type of untargeted, wholly domestic surveillance is exactly what EFF, and others have been suing about for years. In 2006, USA Today published a story disclosing that the NSA had compiled a massive database of call records from American telecommunications companies. Our case, Jewel v. NSA, challenging the legality of the NSA’s domestic spying program, has been pending since 2008, but it's predecessor, Hepting v. AT&T filed in 2006, alleged the same surveillance. In 2011, on the 10th Anniversary of the Patriot Act, we filed a FOIA lawsuit against the Department of Justice for records about the government’s use of Section 215 – the legal authority the government was relying on to perform this type of untargeted surveillance.
But at each step of the way, the government has tried to hide the truth from the American public: in Hepting, behind telecom immunity; in Jewel, behind the state secrets privilege; in the FOIA case, by claiming the information is classified at the top secret level. In May 2011, Senator Ron Wyden, one of the few courageous voices fighting against the government’s domestic surveillance program, said this in a debate about reauthorizing Section 215:
I want to deliver a warning this afternoon: when the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.
Today is that day. The American people have confirmed how the government has secretly interpreted Section 215. And we’re angry. It’s time to stop hiding behind legal privileges and to come clean about Section 215 and FISA. It’s time to start the national dialogue about our rights in the digital age. And it’s time to end the NSA’s unconstitutional domestic surveillance program.