Privacy perverted: No telco ever disobeyed NSA phone record orders

No telecommunications company ever refused to follow the secret US Foreign Intelligence Surveillance Court’s orders to turn over bulk phone records under the Patriot Act, despite a legal mechanism to do so, the court has revealed.

"To date, no holder of records who has received an order to produce bulk telephony metadata has challenged the legality of such an order," Foreign Intelligence Surveillance Court Judge Claire Eagan wrote. Her opinion was made public on Tuesday.

"Indeed, no recipient of any Section 215 order has challenged the legality of such an order, despite the explicit statutory mechanism for doing so," the judge informed, explaining her reasons for reauthorizing the phone records collection "of specified telephone service providers" for three months.

However, according to USA Today, not all phone companies caved in to collaborate with the government. In 2006, before bulk phone records collection was moved under the authority of the FISA court, the only big telecommunications company who refused to help the NSA was Qwest, sources told the newspaper.

On 29 August, Eagan not only approved the US government’s request for the mass collection of data from an unidentified telecommunications firm, but also ordered it declassified.

The collection program, which the government claims is authorized under Section 215 of the Patriot Act, was disclosed by former CIA employee and NSA contractor Edward Snowden.

But Eagan has stated that the collection of phone records does not actually violate the Constitution's Fourth Amendment, which prohibits unreasonable search and seizure.

The judge said that under Section 215, Congress provided for judicial review of FISA Court orders — first to the FISA Court of Review and, ultimately, to the US Supreme Court. That provides for a "substantial and engaging adversarial process to test the legality of this court's orders under Section 215," she noted.

Eagan also stressed in her opinion that prior to Congress reauthorizing Section 215 in 2011, the executive branch provided the intelligence committees of both the House and the Senate with detailed information about how the FISA Court was approving bulk telephone collection under the section. She said the executive branch worked with congressional committees to make sure that each member of Congress knew, or had the opportunity to know, how Section 215 was being implemented under the court's orders.

Director of National Intelligence James R. Clapper said in a statement that Eagan’s opinion "affirms that the bulk telephony metadata collection is both lawful and constitutional. The release of this opinion is consistent with the president's call for more transparency on these valuable intelligence programs."

Deputy legal director of the American Civil Liberties Union, Jameel Jaffer, said that as a defense of the phone records collection program, the opinion is "completely unpersuasive," however.

Earlier this month internet giants Facebook, Yahoo, Google and Microsoft addressed the US Foreign Intelligence Surveillance Court to legally allow them to make public the data requests received from the NSA as part of the infamous PRISM program.

Yahoo is petitioning the FISA court to disclose a 2008 incident when it refused to comply with bulk NSA surveillance until the court ordered it to turn over the data. The company says it has been unable to engage fully in the public debate about whether the government has “properly used its powers,” because it has imposed a restraint on Yahoo's freedom of speech.

In a filing with the court, Yahoo said disclosure of the opinion and briefs would allow the company to "demonstrate that it objected strenuously to the directives that are now the subject of debate, and objected at every stage of the proceeding," but that its objections were overruled.

Earlier this week CEO Marissa Mayer told reporters that Yahoo was unable to release classified data on the NSA as it would have amounted to treason. She referenced Yahoo’s unsuccessful attempt to sue the Foreign Intelligence Surveillance Authority (FISA), the official body that provides the legal backing for the NSA’s mass surveillance programs, in 2007.

However, not all US companies have their anger turned on NSA privacy violation. On Wednesday, Verizon President John Stratton lashed out at Google, Yahoo and Microsoft, criticizing their decision to go to court. Verizon itself wasn’t spared criticism when one of Snowden’s earlier leaks revealed that it handed over large amounts of customer metadata to the NSA on a regular basis.

"I appreciate that the consumer-centric IT firms… that it's important to grandstand a bit, and wave their arms and protest loudly so as not to offend the sensibility of their customers," Stratton said in Tokyo, as cited by ZDnet. "This is a more important issue than that which is generated in a press release. This is a matter of national security."