June 7, 2013 – The Obama administration confirmed the existence of a classified U.S. government program that gathers data on foreign nationals from Internet companies, defending the effort as legally authorized and essential to thwarting terrorist attacks.
The disclosure last night came a day after reports emerged of a secret court order compelling Verizon Communications Inc. to provide the National Security Agency with data on all its customers’ calls. While the revelations stirred outrage among privacy-rights advocates, U.S. lawmakers from both parties acknowledged earlier yesterday that they were aware of the Verizon order and backed the collection of telephone records as necessary to combating terrorism.
“Everybody should just calm down,” Senate Majority Leader Harry Reid, a Nevada Democrat, said at a news conference in Washington. “It’s a program that’s worked to prevent not all terrorism but certainly a vast majority of it.”
Reports in the Guardian and Washington Post newspapers on telephone and Internet surveillance revived a debate that has repeatedly flared since the Sept. 11 attacks about the proper balance between American civil liberties and protection against terrorist threats. The news came as President Barack Obama is being challenged over his regard for individual privacy and constitutionally guaranteed freedom of the press.
U.S. Director of National Intelligence James Clapper acknowledged the Internet and telephone data-collection efforts in two statements circulated by the White House late last night. Responding to the Post and the U.K.-based Guardian reports, he called the surveillance a vital tool in fighting terrorism.
“Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats,” Clapper said of the Internet effort.
The Post and the Guardian reported yesterday, citing classified documents, that the FBI and NSA had accessed the central servers of nine U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents and connection logs. Code-named PRISM, the program traces its roots to warrantless domestic surveillance efforts under former President George W. Bush.
Microsoft Corp., Yahoo! Inc., Google Inc., Facebook Inc., and Apple Inc. were among the technology providers involved, the newspapers reported. The companies issued statements last night either denying that they had granted the government access to their servers or saying that they were unaware of the program.
The Post said the operation, which began in 2007, has grown exponentially and become the most prolific contributor to the president’s daily intelligence briefing, providing raw material for almost one in seven reports. Part of the Defense Department, the NSA runs computer centers analyzing huge databases.
Clapper said the program to tap Internet companies’ servers of “cannot be used to intentionally target any U.S. citizen” or anyone located within the U.S.
Both programs are authorized under the Foreign Intelligence Surveillance Act, Clapper said, and subject to supervision by members of Congress. Data collected are subject to limits by the Foreign Intelligence Surveillance Court, he said.
On the telephone program, he said, “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.”
The telephone surveillance, sought by the Federal Bureau of Investigation and approved by the court on April 25, requires Verizon to provide the NSA with information for three months on calls inside the U.S. and between the U.S. and other countries on a daily and “ongoing” basis, the Guardian reported.
The American Civil Liberties Union last night condemned the data collection described by the Post and Guardian as an abuse of power and called on U.S. lawmakers to investigate.
“Unchecked government surveillance presents a grave threat to democratic freedoms,” ACLU Deputy Legal Director Jameel Jaffer said in an e-mailed statement. “These revelations are a reminder that Congress has given the executive branch far too much power to invade individual privacy.”
The Justice Department, as part of its inquiries into leaks of national-security information, has also obtained secret search warrants for telephone records of journalists from the Associated Press and Fox News, prompting protests from U.S. lawmakers and media-advocacy groups.
Some lawmakers yesterday blasted the breadth of the surveillance. Senator Charles Schumer, a New York Democrat, demanded an explanation for a program he called “invasive.”
“One thing I have not heard is what the explanation is for needing to do this,” Schumer told reporters.
House Speaker John Boehner, an Ohio Republican, said Obama should explain to the American people what he’s doing. The president has the “responsibility to outline what these tools are and how they are being used,” Boehner told reporters.
Still, any effort to limit government surveillance authority “seems unlikely given the broad support counter- terrorism programs have had from congressional leadership,” said Matt Miller, former public affairs director for the Justice Department under Obama and previously a staff member for House and Senate Democrats’ campaign organizations.
“Some of the criticism today is of the brand ‘I can’t believe you’re doing this thing I authorized you today do,’ which is just a little disingenuous,” said Miller, now a partner in the policy and crisis management firm Vianovo LP.
Senate Intelligence Committee Chairman Dianne Feinstein, a California Democrat, and Saxby Chambliss of Georgia, the panel’s top-ranking Republican, said that the telephone surveillance is legal and that they have been kept informed under the law.
“Terrorists will come after us if they can, and the only thing we have to protect us is good intelligence,” Feinstein told reporters. She said the telephone data had stopped multiple plots, though she would not provide any details.
The Bush administration started the so-called Terrorist Surveillance Program in the aftermath of the Sept. 11 attacks, when agencies began secretly conducting electronic surveillance on U.S. phone calls and e-mails without court warrants.
Congress passed a law in 2008 codifying parts of the program and authorizing intelligence agencies to get broad electronic surveillance orders from the Foreign Intelligence Surveillance Court. In 2012, there were 212 such FISA orders, known as “business records requests,” according to a letter from the Justice Department to Reid. The letter doesn’t specify the targets or scope of the requests.
That 2008 law updated the more than three-decade-old Foreign Intelligence Surveillance Act. It lets intelligence agencies monitor the e-mail, Internet activity and phone calls of non-U.S. citizens reasonably believed to be located outside the U.S. and involved in terrorist activities or other crimes. Congress voted last year to extend it until the end of 2017.
Senator Ron Wyden, an Oregon Democrat who tried and failed to include stronger civil liberties protections the last time the law authorizing counter-terrorism surveillance was renewed, said he hoped disclosure of the monitoring would provoke “a real debate in the Congress and the country.”
Senator Bob Corker of Tennessee, the top Republican on the Senate Foreign Relations Committee said there could be a “very simple solution” to address concerns Americans have about their data “being stored, and potentially looked at, without them necessarily being singled out as someone who might be causing harm for our nation.” He declined to elaborate.
Still, there were few signs of outrage as senators filed out of a closed meeting held by the Senate Intelligence Committee on the program. Senators Marco Rubio, a Florida Republican, Tom Coburn, an Oklahoma Republican, and Al Franken, a Minnesota Democrat, told reporters that the surveillance program is operating under sufficient legal controls.
Feinstein and Chambliss, briefing reporters, said the telephone information collected is dumped into a government database and then used to respond to specific threats.
The surveillance program creates “a telephone book” of data and cannot be accessed without “reasonable, articulable suspicion that the records are relevant and related to terrorist activity,” Feinstein said.
The court order covers telephone numbers as well as the location and duration of calls, but not the content of users’ conversations, according to a copy of the order published by the Guardian and posted on its website.
The Supreme Court has never ruled on the constitutionality of such a sweeping surveillance program. In February, the court voted 5-4 to bar a challenge by lawyers and civil-rights activists to a federal law that allows government wiretapping of international phone calls and e-mails.
The majority didn’t rule on the surveillance program itself, instead saying the opponents lacked “standing” to sue because they hadn’t shown they were being harmed.
“The stories published over the last two days make clear that the NSA -- part of the military -- now has direct access to every corner of Americans’ digital lives,” said the ACLU’s Jaffer, who argued the case before the Supreme Court. “Powers exercised entirely in secret, without public accountability of any kind, will certainly be abused.”
Clapper last night criticized the release of previously classified information about surveillance efforts and said the Post and Guardian articles had left out important context about the usefulness of the programs and their privacy safeguards.
“The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans,” Clapper said of the report on the Internet data.
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