Here’s a seemingly comforting statistic: In all of 2012, the Obama administration went to the secretive Foreign Intelligence Surveillance Court only 200 times to ask for Americans’ “business records” under the USA Patriot Act.
Every year, the Justice Department gives Congress a tally of the classified wiretap orders sought and issued in terrorist and spy cases – it was 1,789 last year. At the same time, it reports the number of demands for “business records” in such cases, issued under Section 215 of the USA Patriot Act. And while the number of such orders has generally grown over the years, it has always managed to stay relatively low. In 2011, it was 205. There were 96 orders in 2010, and only 21 in 2009.
Thanks to the Guardian’s scoop, we now know definitively just how misleading these numbers are. You see, while the feds are required to disclose the number of orders they apply for and receive (almost always the same number, by the way), they aren’t required to say how many people are targeted in each order. So a single order issued to Verizon Business Solutions in April covered metadata for every phone call made by every customer. That’s from one order out of what will probably be about 200 reported in next year’s numbers.
The public numbers are the one bit of accountability around the surveillance court, and the Justice Department used them to misdirect the public away from a massive domestic NSA spying operation that, as several Senators approvingly noted today, has been running for seven years.
In 2011, Acting Assistant Attorney General Todd Hinnen relied on the same misleading numbers when he told the House Judiciary Committee that “on average, we seek and obtain section 215 orders less than 40 times per year.” Congressman James Sensenbrenner rightly took Hinnen to task today for juking the stats. “The Department’s testimony left the Committee with the impression that the Administration was using the business records provision sparingly and for specific materials,”Sensenbrenner writes (.pdf). “The recently released FISA order, however, could not have been drafted more broadly.”