OPINION:
The London Guardian newspaper has disclosed that an order from the U.S. Foreign Intelligence Surveillance Court in April has directed Verizon Business Network Services to turn over all its daily records to the U.S. government’s National Security Agency during the term of the order, which lasts until mid-July.
It provides access to “metadata,” which is information about who called whom, when and from where. The order applies to both land-line and mobile phones, and it applies to both domestic and international calls. This is likely to be just one of many similar court orders that apply to other divisions of Verizon and to other phone companies and carriers. Normally, these orders are secret and cannot be disclosed, and it is not clear exactly how the Guardian found out about this one.
The disclosure has caused considerable outrage, with claims that the collection of phone records violates the U.S. Constitution, eviscerating the Fourth Amendment and heavily intruding on freedom of speech protected by the First Amendment. For its part, the Obama administration, just as the Bush administration, says that this type of surveillance is both legal and necessary to combat terrorism.
Widespread alarm has been triggered in large measure by the psychology of the moment, with the press full of stories about government malfeasance, as in the controversy over the Internal Revenue Service revelations of misuse of authority and growing concern about out-of-control government reflected in many reports of warrantless wiretapping.
Alarm has also been raised that of the almost 2,000 government requests to the Foreign Intelligence Surveillance Court, not a single one has been turned down — suggesting that the court is only a rubber-stamp operation and not serious about protecting rights and freedoms.
There is speculation that as a result, the Patriot Act, under which these measures are authorized, may be in serious trouble and could be scuttled in the future. The purpose of the Patriot Act and the surveillance system is to protect the United States, principally against international terrorism.
Today, terrorists are using mobile phones and the Internet to communicate. In this regard, one trend is for terrorist organizations either to buy or steal prepaid mobile phones that are used only a few times and then disposed of, making it a major challenge to track down the users. In the counterterrorism world, these are called “burner phones” because the phones are destroyed or trashed after they are used. There have been major thefts of burner phones in the United States since Sept. 11, 2001.
Because they are notoriously hard to track, about the only way a burner phone can be located is to connect the dots to a known source with a known phone number. If there are terrorists using burner phones on both ends of a call, it is a real challenge to find them, and the forensic information culled from metadata is far from sufficient by itself. Many other tools are needed, such as link-analysis systems, which are used by the NSA and other intelligence and law enforcement agencies.
Metadata can help locate terrorist cells, though, if the dots can be connected quickly. This is probably why the NSA is trying to get daily records of phone transactions from Verizon and other phone carriers.
Doing this makes sense in the context of protecting our national security. Collecting business phone-call transaction information also makes sense if there is a fear that key companies and organizations have been penetrated by terrorist sleeper cells or foreign agents.
It appears that this is what the NSA is doing. In the current environment in which fears of government overreach are growing, it may not be easy for Americans to trust any explanation that may be forthcoming.
Stephen Bryen is a former senior defense official and is CEO of Ziklag Mobile Security Systems.
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