5. Civil liberties groups have questioned the legality of both programs, as described in news reports. Authority for the phone records-collection program is cited as section 215 of the Patriot Act, the counterterrorism legislation hastily passed by Congress after the Sept. 11, 2001, attacks.
But section 215 requires that the data collection be related to "an investigation to protect against international terrorism or clandestine intelligence activities," and the Verizon court order requires the telecom to turn over "all call detail records or 'telephony metadata' created by Verizon for communications between the United States and abroad or wholly within the United States, including local telephone calls."
That mass collection of telephone records "makes a mockery" of the limitations in section 215, said Greg Nojeim, senior counsel at the Center for Democracy and Technology, a digital rights group. "There's no limit" in the court order, he said.
The authority for the information collection from Internet companies comes from section 702 of the Foreign Intelligence Surveillance Act, which prohibits surveillance agencies from intentionally targeting "any person known at the time of acquisition" to be located in the U.S.
Section 702 allows broad collection of foreign intelligence information through telecom and Internet providers, including content of communications, for up to a year at a time, with the request by the U.S. attorney general and director of national intelligence reviewed by the Foreign Intelligence Surveillance Court.
But NSA analysts use search terms designed to produce surveillance target results that give them "at least 51 percent confidence" that the surveillance target is overseas, according to a story in the Washington Post.
With such a low standard to protect against collecting U.S. residents' data, the collection raises major questions about whether it violates the Fourth Amendment to the U.S. Constitution, which protects citizens against unreasonable searches, critics said.
The recent stories show the scope of the data collection by the NSA, said Sharon Bradford Franklin, senior counsel with The Constitution Project, a civil liberties group. "These revelations about the way [section 702] is being interpreted and enforced, and the scope of the collection, increases the likelihood it's violating the Fourth Amendment, by scooping up so much of Americans' communications," she said.
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