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The NSA Black Hole: 5 Basic Things We Still Don’t Know About the Agency’s Snooping

A lot is still unclear.
 
 
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Last week saw  revelations that the FBI and the National Security Agency have been collecting Americans’ phone records en masse and that the agencies have access to data from nine tech companies. 

But secrecy around the programs has meant even basic questions are still unanswered. Here’s what we still don’t know:

1. Has the NSA been collecting all Americans’ phone records, and for how long?

It’s not entirely clear.

The Guardian published a  court order that directed a Verizon subsidiary to turn over phone metadata -- the time and duration of calls, as well as phone numbers and location data -- to the NSA “on an ongoing daily basis” for a three-month period. Citing unnamed sources, the Wall Street Journal  reported the program also covers AT&T and Sprint and that it covers the majority of Americans. And Director of National Intelligence James Clapper himself  acknowledged that the “collection” is “broad in scope.”

2. How long has the dragnet has existed? At least seven years, and maybe going back to 2001.  

Senate Intelligence Committee chair Dianne Feinstein, D-Calif., and vice chair Saxby Chambliss, R-Ga., said last week that the NSA has been collecting the records  going back to 2006. That’s the same year that USA Today  revealed a similar-sounding mass collection of metadata, which the paper said had been taking place since 2001. The relationship between the program we got a glimpse of in the Verizon order and the one revealed by USA Today in 2006 is still not clear: USA Today described a program not authorized by warrants. The program detailed last week does have court approval.

3. What surveillance powers does the government believe it has under the Patriot Act?

That’s classified.

The Verizon court order relies on  Section 215 of the Patriot Act. That  provision allows the FBI to ask the Foreign Intelligence Surveillance Court for a secret order requiring companies, like Verizon, to produce records – “any tangible things” – as part of a “foreign intelligence” or terrorism investigation. As with any law, exactly what the wording means is a matter for courts to decide. But the Foreign Intelligence Surveillance Court’s interpretation of Section 215 is secret.

As Harvard Law Professor Noah Feldman recently  wrote, the details of that interpretation matter a lot: “Read narrowly, this language might require that information requested be shown to be important or necessary to the investigation. Read widely, it would include essentially anything even slightly relevant — which is to say, everything.”

In the case of the Verizon  order -- signed by a judge who sits on the secret court and requiring the company to hand over “all call detail records" -- it appears that the court is allowing a broad interpretation of the Patriot Act. But we still don’t know the specifics.

4. Has the NSA’s massive collection of metadata thwarted any terrorist attacks?

It depends which senator you ask. And evidence that would help settle the matter is, yes, classified.

Sen. Mark Udall, D-Colo.,  told CNN on Sunday, “It's unclear to me that we've developed any intelligence through the metadata program that's led to the disruption of plots that we could [not] have developed through other data and other intelligence.”

He said he could not elaborate on his case “without further declassification.”

Sen. Feinstein  told ABC that the collection of phone records described in the Verizon order had been “used” in the case of would-be New York subway bomber  Najibullah Zazi. Later in the interview, Feinstein said she couldn’t disclose more because the information is classified. (It’s worth noting that there’s also evidence that  old-fashioned police work helped solve the Zazi case — and that  other reports suggest the Prism program, not the phone records, helped solve the case.)

 
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