The Verizon/Section 215 Order and the Clapper Mindset

By Steve Vladeck
Wednesday, June 5, 2013, 11:00 PM

This story from Glenn Greenwald is pretty alarming--but it pales in comparison to the FISA Court's order itself, a copy of which is posted on the Guardian's website. In short, the FISA Court, acting under section 215 of the USA PATRIOT Act (known to history somewhat misleadingly as the "library records" provision), has required Verizon (and perhaps other carriers covered in different orders) to turn over to the NSA and the FBI data on all telephone calls in its systems, both within the U.S. and between the U.S. and other countries, on an "ongoing, daily basis."

To be sure, the order (triggered perhaps by the Boston Marathon investigation) is only in effect for a three-month period ending on July 19. And the information it requires Verizon to turn over doesn't include the content of these conversations (which can only be obtained through other statutory procedures, most--albeit not all--of which require a warrant). But the order includes everything else--phone numbers for both parties to any call on Verizon's network; geolocation data; other "telephony metadata"; and the time and duration of all calls. If there are other orders in place for other providers, then it means the U.S. government will have complete data on every cell phone call involving U.S. carriers during this three-month period anywhere in the world (to say nothing of non-U.S. carriers). As a Verizon customer myself (and one who has spent most of the time covered in the order outside the United States), I harbor no illusions about which of my records are now in Uncle Sam's possession.

I realize that, for many, this order will seem either unsurprising, unalarming, or both. Such is the state of the world--and of the authorities under which the government operates on an increasingly routine basis. But contrast that mentality with the skepticism at the heart of Justice Alito's opinion for the 5-4 Supreme Court majority in February's Clapper v. Amnesty International decision, which, in rejecting standing to challenge (admittedly different) FISA-related authorities, dismissed the plaintiffs' allegations that their communications might be intercepted as purely "speculative."

Justice Alito's specific analysis aside, it's the mindset that I just don't get. Reasonable people can certainly disagree about the normative desirability (and, I dare say, legality) of the degree of governmental surveillance that is now underway. But can reasonable people really continue to disagree that this is the world in which we're living?