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| Ian Wallach Partner Feldman & Wallach www.feldmanwallach.com Recent Media Appearances |
Ian Wallach, June 6, 2013
On April 25 of this year, United States District Judge Roger Vinson of The United States Foreign Intelligence Surveillance Court signed an order mandating all telephone records of calls to, from, or within the USA through Verizon be produced the FBI (http://www.guardian.co.uk/world/interactive/2013/jun/06/verizon-telephone-data-court-order).
It is potentially the broadest information-collecting Court order ever made known to the public – and that part wasn’t intentional (the Order states it is to be classified until 2038), and it makes it unlawful for anyone to leak the Order, stating:
IT IS FURTHER ORDERED that no person shall disclose to any other person that the FBI or NSA has sought or obtained tangible things under this Order, other than to: (a) those persons to whom disclosure is necessary to comply with such Order; (b) an attorney to obtain legal advice or assistance with respect to the production of things in response to the Order; or (c) other persons as permitted by the Director of the FBI or the Director's designee.
Because this specific order – which only addresses Verizon – makes it a violation for anyone to publicize its existence, it is a pretty fair guess that similar orders applying to other cell-phone service providers are also in existence.
The Verizon order states that it does not apply to “the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer” – which gives the illusion of some protection, but I say “illusion” because that information could easily subsequently be obtained by getting a warrant, or by someone who feels no need to get a warrant, or by another order which very well may already exist. Similarly, while the Order does not appear to encompass text messages, such information is likely accessible for those same reasons.
I am not surprised that the Order doesn't apply to calls made overseas -- it's not likely that the FISC would have jurisdiction to do so.
And guess what – per the Obama administration, this has been happening for years (http://www.guardian.co.uk/world/2013/jun/06/obama-administration-nsa-verizon-records). Which on one hand, is disturbing in a “Big-Brother-Is-Watching” fashion, and on the other hand is consoling, as apparently it’s been a secret, which means that phone call information obtained without wiretap warrants have not been used for criminal proceedings. A White House Spokesperson has said they are “vital for protecting national security” – but didn’t say how, or provide a single example. Al Gore described this “secret-blanket surveillance” as “obscenely outrageous.”
The power for the Executive Branch to acquire this Order originated in the first version of the Patriot Act. But even the Patriot Act required the FBI to notify congress about warrants sought under its provisions, and this is no longer the case. According to a statement issued today by the Center for Constitutional Rights, “The Patriot Act provision requires the FBI to notify Congress about the number of such warrants, but this single order covering millions of people is a deceptive end-run around that disclosure requirement.”
After 9-11, the Patriot Act sounded like a great idea, even though it was a tremendous expansion of executive power. And now that this 12-year old power is in the hands of a new President, who doesn’t want to let it go. But who would you prefer to have protecting your privacy – a Judge, familiar with the bounds of the constitution and the harm from interfering with the rights it protects, or a President, wanting to keep his power as broad as possible.
There is already a system in place for law enforcement to get access to phone records and even phone-calls. It’s called a search warrant. And the requesting agency needs to pony up a real justification to get this private information. And if the judge issues the warrant, the information sought won’t likely be excluded from a trial (as of 2010, only four motions seeking to suppress information obtained from wiretap warrants had been granted in California – only four, out of thousands of applications). This has been the proper vehicle to protect the rights of a nation and the rights of its population. But this country-old process has been bypassed – without our knowledge or permission.
Of course, I am thankful that there have been no foreign terrorist attacks on U.S. soil since 9/11. But I would like to see some kind of link between the Patriot Act, these Orders, and the lack of an attack – rather than just get a promise that they are somehow connected.
I’m open to hearing why we need this type of order, but feel that we are entitled to, at a minimum, a justification that makes sense (not just a reference to big fear and a promise that those people spying on my calls are really doing so for my protection).
When I pick up my phone to speak to someone, and share my thoughts, fears, and frustrations, I’d like to believe that no else is listening.
A bio of Ian Wallach is listed below. For information about media appearances by Ian Wallach, as well as media coverage of other Feldman & Wallach matters, click here: http://trialfiendinthenews.blogspot.com/. And you can follow Ian Wallach on Twitter @justicechaser.
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