To protect our First Amendment right of freedom of the press, the Code of Federal Regulations has stringent conditions regarding the government investigations of journalists. Before the government can subpoena a reporter's telephone billing records, investigators must try all other reasonable forms of investigation. And no one less than the Attorney General can approve the issuing of a subpoena for a journalist's telephone records.
These careful, binding rules were badly broken in 2004. The FBI investigated New York Times and Washington Post correspondents, reporting from Jakarta on Islamic terrorism. They asked for records under "exigent circumtances," bypassing a subpoena and the rules set down in the Code of Federal Regulations. Seeking 38 days of toll records, they got 22 months worth. One telecommunciations provider gave the FBI records on 1,627 calls, even though only three calls were within the investigatory period of interest; the FBI downloaded the information on all 1,627 -- and could use it for further investigations.
Discovering who's talking with a reporter severely compromises that reporter's ability to do their work. Who would talk with a journalist about sensitive information if they knew law enforcement could track their every move? That chilling effect is the reason behind the restrictive rules in the Code of Federal Regulations.
The reporters are our canaries in the coal mine -- but we didn't pay attention. And so it should be no surprise what happened next. Now it's not just the reporters who are being targeted; it is all of us.
Yesterday the British paper the Guardian reported that since April Verizon is under a Foreign Intelligence Surveillance Court order to hand over transactional data on U.S. calls. The information includes routing information, time and duration of call, orginating and terminating numbers of every single call made within the U.S. or between the U.S. and abroad. This apparently is being done under the authority of Section 215 of the PATRIOT Act, which simplified the ability of the government to obtain business records if they were "relevant" to an ongoing investigation.
Such transactional information is remarkably revelatory. A recent paper in Nature found that with 95 percent probability four location points were sufficient to identify an individual (home and work pairs are often unique). Location tells you lots: who is going to church on Sunday (and which church), whether someone has changed jobs, where they are going for medical treatment), and with whom they are spending their nights. Three decades ago, the last time our laws (specifically the Electronic Communications Privacy Act) codified government's access to telephone billing records, telephones were large objects that didn't go anywhere. Now, with the ubiquity of cell phones -- and the consequent disappearance of payphones -- everyone carries a device that reveals their location many times a day. This transactional information can be more revelatory than the content of the calls, which is currently much more highly protected by law.
It is virtually impossible to understand the decision made by the (highly secretive) Foreign Intelligence Surveillance Court. Perhaps the FISA Court did not understand the vast amount of information in the so-called "business records" of telephone transaction data, or what that information could reveal. Or perhaps the court did, and decided to give the FBI what it wanted anyway. In either case, what the FISA Court has done is terrible for liberty, privacy, security and consent of the governed.
The invasiveness of this data is hard to underestimate. It is data that reveals where every connected person is during the day, with whom they speak, when, how often. The FBI broke a covenant during the experience of the exigent letters. Instead of being more cautious as a result, the FISA Court's response has been to give access to vastly more data under a secret order -- and apparently without oversight. The judges have provided a treasure trove that the Stasi could only dream of. That it is occurring in the United States is a nightmare.