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Jon Greenberg
By Jon Greenberg June 13, 2013
Louis Jacobson
By Louis Jacobson June 13, 2013

Mark Udall says ordinary Americans' business records caught up in surveillance net

While most Americans seem ready to support intelligence agencies casting a wide net against terrorists, they have some concerns about the scope of domestic surveillance. Congress began hearings on the surveillance of phone calls and Internet traffic that became public last week.

On June 9, 2013, ABC’s This Week with George Stephanopoulos aired footage of comments from Sen. Mark Udall, D-Colo. In a floor speech roughly two years ago, Udall urged his colleagues to narrow the reach of the USA Patriot Act, one of the key legal tools that allow the United States to gather intelligence.

Udall had been briefed on the program that stored data on millions of phone calls made in the United States, but secrecy rules prohibited him from offering details. Instead, he warned broadly that the intelligence community "can collect business records on law-abiding Americans who have no connection to terrorism."

Udall’s office affirmed that they still reflect the senator’s position. So we wondered whether the law allows the intelligence community to legally "collect business records on law-abiding Americans who have no connection to terrorism."

Udall cited Section 215 of the Patriot Act as the relevant part of the law. This provision was reportedly the one used by the government to obtain a broad sweep of "metadata" -- information on phone numbers, call durations and other information short of the actual conversations -- from Verizon customers.

Section 215 allows the FBI to require "the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism."

However, the government faces some limits. The FBI must demonstrate to a special court, the Foreign Intelligence Surveillance Court, that it has reasonable grounds to believe that the tangible things being sought are relevant to an investigation involving terrorism. Approval must be renewed every three months. The law also requires steps to limit access to information beyond the scope of the investigation.

After the Guardian published its article on the gathering of millions of phone records from Verizon customers, the director of national intelligence, James Clapper, addressed the "business records" provision of the Foreign Intelligence Surveillance Act.

Clapper said the "program does not allow the government to listen in on anyone’s phone calls. The information acquired does not include the content of any communications or the identity of any subscriber. The only type of information acquired under the court’s order is telephony metadata, such as telephone numbers dialed and length of calls," Clapper said in a written statement.

Gen. Keith Alexander, the head of the National Security Agency, acknowledged in a Senate hearing on June 12 that the NSA has collected millions of records under section 215.

In short, the program that obtained the data on Verizon customers was deemed legal by the FISA court, and it produced what the government considered "business records" -- specifically, metadata. Information on millions of Americans was accessed, almost all of whom had no connection to terrorism.

Udall’s claim appears accurate. Congress wrote the law and key lawmakers were kept apprised of the program; the FISA court approved it, apparently on multiple occasions.

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Former Sen. Bob Graham of Florida, an Intelligence Committee chairman until 2005, said the ongoing activity speaks to the soundness of its legal footing.

"It is being done," Graham said. "Given the fact that it has not been successfully challenged in the courts, that would suggest that it is within the agency’s authority to do so."

Steve Vladeck, professor of law at the American University Washington College of Law, concurred that the law seems to be on the government’s side.

"Section 215 of the Patriot Act only requires that the data be ‘relevant’ to a national security/terrorism investigation, not that the individual whose data is seized have such a connection," Vladeck said.

Still, we’ll point out a few things.

First, just because the government is doing it and a court is approving it doesn’t mean that the metadata-collection program will be upheld as constitutional indefinitely. The American Civil Liberties Union has already begun to challenge the program, for instance.

And the Electronic Privacy Information Center, a group focused on the intersection of technology and personal liberties, charged in a letter to Congress that the FISA court had overstepped its authority. The group said the government had failed to provide "reasonable grounds" for the collection of millions of Verizon telephone records.

Second, there’s a distinction between collecting data and sifting through it. While the government has been storing phone call information in a giant database, it cannot legally access that information willy-nilly. Before it can drill down into actual phone calls, it has to meet a higher legal standard: The government must convince the court that it has a clear and reasonable suspicion that the calls are relevant to terrorist activity. Supporters of the program including the White House and lawmakers cite the need to get specific permission for database queries as an essential protection of individual privacy.

Our ruling

Udall said that currently, the intelligence community "can collect business records on law-abiding Americans who have no connection to terrorism."

Recent news reports, which prompted acknowledgements by U.S. officials, confirm that intelligence agencies have been gathering a vast amount of phone metadata, which they argue falls under the category of business records. This metadata can be "collected" -- as Udall phrased it -- though it’s important to note that this data cannot be utilized directly in an investigation until a more stringent legal standard is met.

Meanwhile, common sense tells us that millions of Americans who are having their metadata collected are not involved in terrorism, further bolstering Udall’s claim.

Because this program was approved by the Foreign Intelligence Surveillance Court, it is, in a de facto sense, legal. That doesn’t mean the program wouldn’t be vulnerable to court challenges in the future, but until that happens, we rate the statement True.

Our Sources

ABC News, "This Week with George Stephanopoulous,’" June 9, 2013

Sen. Mark Udall, Senate floor speech, May 24, 2011

CBS News, Most disapprove of government snooping of ordinary Americans, June 11, 2013

The Guardian, "NSA collecting phone records of millions of Verizon customers daily," June 6, 2013

The Guardian, "Boundless Informant: the NSA's secret tool to track global surveillance data," June 11, 2013

Washington Post, "U.S., British intelligence mining data from nine U.S. Internet companies in broad secret program," June 6, 2013

Council on Foreign Relations, "Backgrounder: U.S. Domestic Surveillance," June 10, 2013

Slate, "The Case for Mass Surveillance," June 10, 2013

Slate, "This Is What Section 215 of the Patriot Act Does," June 7, 2013

New Republic, "A Tale of Two NSA Leaks," June 10, 2013

National Archives, Executive Order 12333--United States intelligence activities, December 4, 1981

Congressional Research Service, "Reauthorization of the FISA Amendments Act," April 8, 2013

Justice Department, "The NSA program to detect and prevent terrorist attacks: Myth v. reality," Jan. 27, 2006

U.S. Code, Foreign Intelligence Surveillance, Title 50, Chapter 36

Office of the Director of National Intelligence, "DNI Statement on Recent Unauthorized Disclosures of Classified Information," June 6, 2013

Electronic Privacy Information Center, Letter to Congress, June 7, 2013

U.S. Government Printing Office, Udall floor speech - Congressional Record, May 24, 2011

Washington Post Fact Checker, "Obama’s claim that ‘every member of Congress’ was briefed on telephone surveillance," June 11, 2013

Washington Post, "Congress approves extension of USA Patriot Act provisions," May 26, 2011

Council on Foreign Relations, "Backgrounder: U.S. Domestic Surveillance," June 10, 2013

Interview with Bob Graham, former chair, Senate Intelligence Committee, June 11, 2013

Email interview with John Pike, director of, June 11, 2013

Email interview with Nathan Sales, law professor at George Mason University, June 11, 2013

Email interview with Molly Bishop Shadel, law professor at the University of Virginia, June 11, 2013

Email interview with Stephen I. Vladeck, professor of law, American University Washington School of Law, June 12, 2013

Interview with Eleanor Hill, former inspector general at the Defense Department, June 11, 2013

Email interview with Frederick P. Hitz, adjunct professor in public policy at the University of Virginia and former inspector general of the CIA, June 12, 2013

Interview with Patrick Toomey, fellow with the ACLU National Security Project, June 12, 2013

Interview with Trevor Timm, digital rights analyst with the Electronic Frontier Foundation, June 12, 2013

Email interview with Mike Saccone, communications director, Sen. Mark Udall, June 12, 2013

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Mark Udall says ordinary Americans' business records caught up in surveillance net

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