In a top-secret order issued in April, the U.S. Foreign Intelligence Surveillance Court granted the government's application to require Verizon Business Network Services Inc. on an “ongoing, daily basis” for three months to turn over certain “telephony metadata” pertaining to all calls made on its networks within the U.S. and between the U.S. and a foreign country.
The order — which was leaked and published by the Guardian on Wednesday — requires Verizon to produce “routing information” about the time, duration and location of calls, but does not allow the government to obtain the “substantive content of any communications,” or the name, address or financial information of the subscriber or customer. It also excludes calls between two foreign parties.
The Obama administration on Thursday defended the order, which was issued under a controversial section of the USA Patriot Act that allows the government to access business records and other “tangible things” that it deems relevant to a terrorism or national security investigation.
“The intelligence community is conducting court-authorized intelligence activities pursuant to public statute with the knowledge and oversight of Congress," White House spokesman Josh Earnest told reporters.
Verizon refused to comment, but executive vice president and general counsel Randy Milch briefly discussed the Guardian report in an internal email he sent to employees that was obtained by Law360 on Thursday.
In the email, Milch refused to verify the accuracy of the newspaper's report, but pointed out that the published court order compelled Verizon to respond, forbade the company from revealing the order's existence and excluded from production any content data.
“Verizon continually takes steps to safeguard its customers' privacy,” Milch wrote. “Nevertheless, the law authorizes the federal courts to order a company to provide information in certain circumstances, and if Verizon were to receive such an order, we would be required to comply.”
Attorneys who spoke to Law360 said it was true that service providers who receive orders under the Patriot Act for access to their business records often have little choice but to turn over the information.
“Their options are limited,” Weisbrod Matteis & Copley PLLC partner Peter Toren said. “They're faced with a facially valid court order that requires them to not disclose its existence, so there is very little that companies like Verizon can be doing, and I think that they would be reluctant to take any sort of actions because they certainly don't want to be accused of interfering with national security.”
While government agencies are not required to name specific targets in order to obtain records under the Patriot Act, all three branches of government play a role in the authorization process. The broad oversight helps to insulate orders from widespread attacks and distinguishes it from other efforts such as the nixed Terrorist Surveillance Program, which allowed the government to obtain records without judicial approval, attorneys noted.
“These particular orders, as described in the press, are issued by a court based on information provided by the executive branch that is prescribed by statute,” Covington & Burling LLP partners David Fagan and Jim Garland said in an email. “The general framework that is in place is not flimsy or haphazard; it is one that involves all three branches of government.”
Because proceedings before the FISA court are secret, it is unknown how often companies elect to mount appeals to the orders they receive, although attorneys guessed that not many companies would be likely to expend the time and effort necessary to challenge a directive that few people know exist.
But with the leak of the Verizon order, companies may be invigorated by the resulting public outcry to take a firmer stand against future orders, according to attorneys.
“It may embolden companies to say, 'Look, now that the public knows about this, we can challenge it,” Toren said. “Companies may well use the public's sentiment that they don't appreciate being the subject of such broad powers of the government as an excuse to be able to challenge the FISA court orders.”
Hunton & Williams LLP partner Paul Tiao also said that where public opinion ultimately ends up could affect companies' reaction to these orders moving forward.
"Companies, to some extent, are influenced by what they believe to be the views of their customers,” he said. “If the government were to say more about the justification behind seeking out and obtaining this order, and in two or four weeks the general consensus of the public is that the government struck the appropriate balance between national security and privacy, then that could influence how companies respond and react to service orders in the future.”
But even if companies do elect to challenge orders more often, attorneys caution that there are still many obstacles to overcome. For one, the unique shroud of secrecy under which the FISA court operates leaves companies with little hint as to how their effort may fare, according to Fenwick & West LLP partner Tyler Newby.
“You can't go on Westlaw and see what other courts have decided in the past,” he said. “If Verizon or AT&T or some other provider had challenged a similar order in the past, that's under seal.”
Receiving a court order that has already been deemed valid by a federal judge also provides a sizable roadblock in companies' efforts to prove that the order is contrary to law, attorneys say.
“During the Bush administration, officials were doing things without the scrutiny of the court, so the law was enacted to require FISA court review,” Patton Boggs LLP partner and former U.S. Department of Homeland Security Inspector General Clark Kent Ervin said. “So now, these records are demanded pursuant to a court order, and the likelihood that they are overturned on appeal is low, so as a practical matter, companies don't have much choice but to comply.”
And attorneys predict that the path to challenging these surveillance orders is unlikely to be smoothed absent more intense scrutiny from judges or congressional action.
“Hopefully, the release of the order will help to change something,” Toren said. “Maybe it will convince judges to decide that they should put the DOJ a little bit more through the paces and not sign off on orders like this on an ongoing basis, and maybe Congress will conduct some closed-door hearings on the order to find out what the basis was for such a broad request.”
--Editing by Elizabeth Bowen and Jeremy Barker.
