WASHINGTON — The Obama administration is secretly carrying out a domestic surveillance program under which it is collecting business communications records involving Americans under a hotly debated section of the Patriot Act, according to a highly classified court order disclosed on Wednesday night.
A senior Obama administration official said on Thursday morning that a court order seeking the business records of Verizon customers, disclosed by the newspaper The Guardian, “does not allow the government to listen in on anyone’s telephone calls” and “does not include the content of any communications or the name of any subscriber,” but rather “relates exclusively to metadata, such as a telephone number or the length of the call.”
The official emphasized that “all three branches of government are involved in reviewing and authorizing” any domestic intelligence collection under the Foreign Intelligence Surveillance Act, and that any surveillance activities under it are overseen by the Justice Department, the office of the Director of National Intelligence, and the FISA Court “to ensure that they comply with the Constitution and laws of the United States and appropriately protect privacy and civil liberties.”
“Information of the sort described in the Guardian article has been a critical tool in protecting the nation from terrorist threats to the United States,” the official said, “as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.”
The order, signed in April by Judge Roger Vinson of the Foreign Intelligence Surveillance Court, directs a Verizon Communications subsidiary, Verizon Business Network Services, to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”
The order does not apply to the content of the communications.
Senator Mark Udall, a Colorado Democrat who has raised warnings about sweeping federal surveillance, suggested on Thursday that the program represented excessive action by the government.
“While I cannot corroborate the details of this particular report, this sort of widescale surveillance should concern all of us and is the kind of government overreach I’ve said Americans would find shocking,” Mr. Udall said. “As a member of the Senate Intelligence Committee, it’s why I will keep fighting for transparency and appropriate checks on the surveillance of Americans.”
Verizon Business Network Services is one of the nation’s largest telecommunications and Internet providers for corporations. It is not clear whether similar orders have gone to other parts of Verizon, like its residential or cellphone services, or to other telecommunications carriers. The order prohibits its recipient from discussing its existence, and representatives of both Verizon and AT&T declined to comment Wednesday evening.
The four-page order was disclosed Wednesday evening. Obama administration officials at the F.B.I. and the White House also declined to comment on it Wednesday evening, but did not deny the report, and a person familiar with the order confirmed its authenticity. “We will respond as soon as we can,” Marci Green Miller, a National Security Agency spokeswoman, said in an e-mail.
The order was sought by the Federal Bureau of Investigation under a section of the Foreign Intelligence Surveillance Act, the 1978 law that regulates domestic surveillance for national security purposes, including “tangible things” like a business’s customer records. The provision was expanded by Section 215 of the Patriot Act, which Congress enacted after the 9/11 terrorist attacks.
The order was marked “TOP SECRET//SI//NOFORN,” referring to communications-related intelligence information that may not be released to noncitizens. That would make it among the most closely held secrets in the federal government, and its disclosure comes amid a furor over the Obama administration’s aggressive tactics in its investigations of leaks.
The collection of call logs is set to expire in July unless the court extends it.
The collection of communications logs — or calling “metadata” — is believed to be a major component of the Bush administration’s program of surveillance that took place without court orders. The newly disclosed order raised the question of whether the government continued that type of information collection by bringing it under the Patriot Act.
The disclosure late Wednesday seemed likely to inspire further controversy over the scope of government surveillance. Kate Martin of the Center for National Security Studies, a civil liberties advocacy group, said that “absent some explanation I haven’t thought of, this looks like the largest assault on privacy since the N.S.A. wiretapped Americans in clear violation of the law” under the Bush administration. “On what possible basis has the government refused to tell us that it believes that the law authorizes this kind of request?” she said.
For several years, two Democrats on the Senate Intelligence Committee, Senator Ron Wyden of Oregon and Senator Udall, have been cryptically warning that the government was interpreting its surveillance powers under that section of the Patriot Act in a way that would be alarming to the public if it knew about it.
“We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act,” they wrote last year in a letter to Attorney General Eric H. Holder Jr.
They added: “As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.”
A spokesman for Senator Wyden did not respond Wednesday to a request for comment on the Verizon order.
The senators were angry because the Obama administration described Section 215 orders as being similar to a grand jury subpoena for obtaining business records, like a suspect’s hotel or credit card records, in the course of an ordinary criminal investigation. The senators said the secret interpretation of the law was nothing like that.
Section 215 of the Patriot Act made it easier to get an order from the Foreign Intelligence Surveillance Court to obtain business records so long as they were merely deemed “relevant” to a national-security investigation.
The Justice Department has denied being misleading about the Patriot Act. Department officials have acknowledged since 2009 that a secret, sensitive intelligence program is based on the law and have insisted that their statements about the matter have been accurate.
The New York Times filed a Freedom of Information Act lawsuit in 2011 for a report describing the government’s interpretation of its surveillance powers under the Patriot Act. But the Obama administration withheld the report, and a judge dismissed the case.
