Legislators and privacy experts say the NSA's culling of millions of Verizon customers' cellphone records is nothing new and has been mentioned publicly for quite some time. Since April, The Guardian reported Thursday, the National Security Agency has been collecting call data from millions of Verizon customers, legal under a secret court order authorized by the Federal Intelligence Service Court (FISC), which, among other things, handles requests for terrorism-related surveillance warrants.
"The NSA has a finger into all telecomm providers," said Jim Harper, director of information policy studies at the Cato Institute. "With Congress's approval it takes full advantage of advanced telecoms to create a mass surveillance program."
Harper rightly points out that this isn't the NSA's first incursion into Americans' cell phones. In 2001, the Bush administration entered into a contract with AT&T, BellSouth and Verizon to obtain cellular data, USA Today reported in 2006.
Congress has also been aware that both the Bush and Obama administrations were regularly seizing cellular information, and doing it under Section 215 of the Patriot Act — a highly contentious clause that gives the federal government the power to acquire "tangible things" from telecommunications providers if those "things" — in this case, cellphone metadata like ingoing and outgoing numbers associated with a call, call duration and time and possibly location — are related to a security investigation.
In the time that's elapsed between 2001 — when the Patriot Act was first rolled out — and today, Congress has frequently voted to keep NSA proceedings secret and blocked amendments to the National Defense Authorization Act that would have required more transparency.
"This is nothing particularly new," Sen. Saxby Chambliss, R-Ga., the top Republican on the intelligence panel, told USA Today. "This has been going on for seven years under the auspices of the (Foreign Intelligence Surveillance Act) authority and every member of the United States Senate has been advised of this."
David Pozen, a professor at Columbia Law School who specializes in information law, noted that Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) have been urging Congress and the Obama Administration for quite some time to reconsider Section 215's sweeping powers.
"Wyden and Udall foreshadowed this on the Senate floor and said how stunned Americans would be if they knew how broadly Section 215 was being applied" he said. "It's as if everyone needed this report to go beyond what Wyden and Udall were saying."
Pozen called yesterday's report the long-simmering conclusion of a hardly hidden drama, and placed the blame not only on the Bush and Obama administrations, but also legislators.
"Congress is every bit as culpable as the Executive Branch — they drafted those laws and the lack of oversight primed this situation," he said.