July 8, 2013
Secret Court's Redefinition of 'Relevant' Empowered Vast NSA Data-Gathering
By JENNIFER VALENTINO-DEVRIES and SIOBHAN GORMAN
The National Security Agency's ability to gather phone data on millions of Americans hinges on a secret court ruling that redefined a single word: "relevant."
This change--which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden--was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.
In interviews with The Wall Street Journal, current and former administration and congressional officials are shedding new light on the history of the NSA program and the secret legal theory underpinning it. The court's interpretation of the word enabled the government, under the Patriot Act, to collect the phone records of the majority of Americans, including phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism.
"Relevant" has long been a broad standard, but the way the court is interpreting it, to mean, in effect, "everything," is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department's primary authority on federal criminal surveillance law.
"I think it's a stretch" of previous federal legal interpretations, says Mr. Eckenwiler, who hasn't seen the secret ruling. If a federal attorney "served a grand-jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court."
Two senators on the Intelligence Committee, Ron Wyden (D., Ore.) and Mark Udall (D., Colo.), have argued repeatedly that there was a "secret interpretation" of the Patriot Act. The senators' offices tell the Journal that this new interpretation of the word "relevant" is what they meant. An official at FISC, the secret court, declined to comment. The NSA referred questions to the Justice Department, saying this provision of the Patriot Act addressed FBI authorities. The Justice Department didn't comment.
U.S. surveillance programs are under fresh scrutiny after Mr. Snowden, the former NSA contractor, among other things revealed a secret order from the surveillance court directing Verizon Business Services Inc. to turn over "comprehensive communications routing information" to the NSA. Mr. Snowden also revealed a classified draft of a 2009 NSA Inspector General report that provides further details on the phone program and a related one that gathered Internet data. Other large phone companies, including AT&T Inc. and Sprint Nextel Corp., receive similar orders every three months, former officials say.
Under the Patriot Act, the Federal Bureau of Investigation can require businesses to hand over "tangible things," including "records," as long as the FBI shows it is reasonable to believe the things are "relevant to an authorized investigation" into international terrorism or foreign intelligence activities.
The history of the word "relevant" is key to understanding that passage. The Supreme Court in 1991 said things are "relevant" if there is a "reasonable possibility" that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions--innocent people's information--wouldn't be pertinent.
But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. The court's rulings on such matters are classified and almost impossible to challenge because of the secret nature of the proceedings. According to the court, the special nature of national-security and terrorism-prevention cases means "relevant" can have a broader meaning for those investigations, say people familiar with the rulings.
The use of computers to look for links in massive data sets also means information previously not considered relevant could today, in fact, be important in some broad investigations, says Paul Rosenzweig, a former Deputy Assistant Secretary for Policy in the Department of Homeland Security in the administration of President George W. Bush.
"Large databases are effective" for this type of analysis "only to the extent they are actually comprehensive," says Mr. Rosenzweig, founder of homeland-security consultant Red Branch Consulting PLLC.
This explanation echoes recent statements by the Obama administration. "More narrow collection would limit our ability to screen for and identify terrorism-related communications," said James Clapper, Director of National Intelligence, in a statement June 6.
People familiar with the system that uses phone records in investigations say that the court's novel legal theories allow the system to include bulk phone records, as long as there are privacy safeguards to limit searches. NSA analysts may query the database only "when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization," according to Mr. Clapper.
The NSA database includes data about people's phone calls--numbers dialed, how long a call lasted--but not the actual conversations. According to Supreme Court rulings, a phone call's content is covered by the Constitution's Fourth Amendment, which restricts unreasonable searches, but the other types of data aren't.
The idea that large databases of American activity were needed to prevent terrorism gained steam following the terror attacks of Sept. 11, 2001. Soon after, the Bush administration began several expanded surveillance efforts.
Amid controversy over the programs starting in 2004, the administration agreed to move domestic Internet data collection under the authority of FISC orders, according to the Inspector General's report revealed by Mr. Snowden. (That Internet data collection program ended in 2011, the NSA has said.) By 2006, the administration looked to move the phone-records program under the court as well, according to the report.
In 2005 and early 2006, some lawmakers tried to tighten the Patriot Act when it came up for reauthorization. At that time, the part of the law being used to get phone records required investigators simply to state that records were sought for an authorized investigation into terrorism or foreign intelligence--a lower standard than "relevant." Congress added the word "relevant" to the law, but senators who wanted even stricter standards--which would have ended the ability to collect bulk phone records--failed.
Former Sen. Jon Kyl spoke on the floor of the Senate in favor of the "relevance" standard. "We all know the term 'relevance.' It is a term that every court uses," he said in 2006. "The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation," he said.
But a few people cautioned that "relevant" could be defined to the point of irrelevance. "Relevance is a very broad standard that could arguably justify the collection of all kinds of information about law-abiding Americans," former Sen. Russ Feingold said on the Senate floor in February 2006. He argued for stricter wording, and failed.
President Bush signed the Patriot Act reauthorization in March 2006. And the NSA and Justice Department set about persuading the secret court, FISC, that the law allowed them to obtain bulk phone records.
The Bush administration didn't see the argument as a difficult one to make. According to the draft Inspector General's report revealed by Mr. Snowden, the administration had won court approval of the Internet data program two years before, something that made it easier to answer the court's questions. Of the requirement to show "relevance," a former official familiar with the discussions at the time says: "Usually, it's a pretty generous standard."
The court did limit the number of people who could access the data, and it required "more stringent oversight" by the Justice Department, according to the Inspector General's report. But in May 2006, the secret court agreed that, even with the addition of the word "relevant," bulk phone records could also be collected under the law.
The legal interpretations required to make this change were "aggressive," says Timothy Edgar, a former top privacy lawyer at the Office of the Director of National Intelligence and the National Security Council in the Bush and Obama administrations. Still, considering that the program previously had less congressional or court oversight, many lawmakers saw this as a step forward, he says.
"It wasn't seen that we're pushing the boundaries of surveillance law here," Mr. Edgar says. "It was the very opposite. You're starting from a huge amount of unilateral surveillance and putting it on a much sounder legal basis."
Some lawmakers now disagree. "The government must request specific records relevant to its investigation," Rep. Jim Sensenbrenner (R., Wis.), one of the authors of the Patriot Act, says. "To argue otherwise renders the provision meaningless," he says. "It's like scooping up the entire ocean to guarantee you catch a fish."
Given the traditional legal definition of relevant, Mr. Edgar says, it is "a fair point" to say that someone reading the law might believe it refers to "individualized requests" or "requests in small batches, rather than in bulk database form." From that standpoint, he says, the reinterpretation of relevant amounts to "secret law."
Still, he says, Congress repeatedly had the option to prohibit in legislation the bulk collection of records, and it didn't.
Defenders of using the Patriot Act this way make similar arguments. In a statement last month, the chair and ranking minority member on the Senate Intelligence Committee said that both the House and Senate Intelligence and Judiciary committees have "been briefed extensively" on this.
Mr. Edgar added, however, that Congress couldn't fully debate the issue because the program wasn't public.
Write to Jennifer Valentino-DeVries at Jennifer.Valentino-DeVries@wsj.com and Siobhan Gorman at firstname.lastname@example.org