Already under fire from conservatives and liberals for his broad surveillance of Associated Press and Fox News reporters, Attorney General Eric Holder is about to face much tougher questions from Congress after the Guardian reported yesterday that the National Security Agency is currently collecting the telephone records of millions of U.S. Verizon customers.
The “business records” loophole
The Foreign Intelligence Surveillance Act does not allow the NSA to listen in on purely domestic phone calls. However, 50 USC 1861 (a.k.a. the Patriot Act), does allow the NSA to collect “business records” from communication companies, including numbers dialed and received, length of call, customer names, and customer financial information. Probable cause is not needed to collect this information since Americans do not have a privacy interest in the commercial transactions they undertake.
Taking FISA to extremes
While it was widely known the NSA could collect such data in relation to a specific authorized investigation, approved by the attorney general, the on-going and infinitely broad nature of the court order obtained by the Guardian is unprecedented. However, it does appear that Congress has been informed about this NSA program, and some members have been objecting to it for months.
The Guardian notes that Sens. Ron Wyden, D-Ore., and Mark Udall, D-Colo., sent a letter to Holder last year writing “there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows.” “We believe,” they continued, “that most Americans would be stunned to learn the details of how these secret court opinions have interpreted” the “business records” provision of the Patriot Act.
Holder is scheduled to testify before the Senate Commerce Committee at 10:45 a.m. Thursday.
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