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James Boyd
Center for Applied Cybersecurity Research

Last modified: Thursday, June 6, 2013

Disclosure of NSA's secret Verizon order latest chapter in privacy vs. security debate

Verizon customers likely to sue, Indiana University legal expert says

June 6, 2013

BLOOMINGTON, Ind. -- The disclosure of a top secret order instructing Verizon to provide the National Security Agency with phone records for communications between the United States and foreign countries and those wholly within the United States -- including local calls -- has profound significance for U.S. national security, the rule of law and the future of privacy rights in the United States, says an Indiana University law and cybersecurity expert.

It also will pressure the government to disclose the full extent of surveillance on American citizens for counterterrorism purposes, he adds.

David Fidler

David P. Fidler

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David P. Fidler, a fellow at IU's Center for Applied Cybersecurity Research and the James Louis Calamaras Professor of Law at the IU Maurer School of Law, said the disclosure of the order -- issued under the Foreign Intelligence Surveillance Act -- constitutes yet another leak of highly sensitive national security information, "compounding the already acrimonious controversies related to prior leaks and the Obama administration's response to them." Additionally, the disclosure of the Verizon order doesn't mean other telecommunications companies aren't under similar instructions, he said.

"The Obama administration has defended its actions by arguing that protecting Americans from terrorism requires the government to have access to such a massive amount of information on telephone communications by U.S. citizens in the United States," Fidler said. "Given that Verizon is probably not known as the preferred choice of terrorists, this rationale might mean that the administration sought similar sweeping secret orders from other communications companies and for other forms of communication, such as email."

Referring to President Barack Obama's recently declared intention to transition U.S. counterterrorism strategies away from policies, such as expanded surveillance, adopted after the 9/11 terrorist attacks, Fidler said the Verizon order demonstrates the difficulties making such a transition presents to government officials.

"Disclosure of a top secret surveillance program capturing daily data about U.S. citizens' local telephone calls in the name of fighting terrorism suggests that, in addition to re-thinking drone attacks and terrorist detention policies, the United States faces very hard questions about how it conducts surveillance for counterterrorism purposes more than a decade after 9/11," he said.

And, Fidler added, the "privacy vs. security" debate is deeply entangled with legal challenges as well.

"The Obama administration defended the Verizon order on the basis that all three branches of the government approved the rules and procedure for obtaining it," he said. "However, serious disagreements exist about whether the applicable statutes and the Constitution permit the surveillance undertaken under this order. These disagreements will now appear in their full sound and fury, including new constitutional challenges to statutes by customers of Verizon who, thanks to the disclosure of this order, should have standing before federal courts, even under the Supreme Court's recent Clapper v. Amnesty International decision on standing to challenge the constitutionality of FISA.

"Although legal disagreements will find their way into federal courts, this revelation confronts Americans with a deeper dilemma: reaching consensus on what privacy means in an age of pervasive technologies, expanding data-mining capabilities and shadowy national security threats."

Fidler is an internationally recognized expert on international law and cybersecurity law and policy, among other areas. He is the co-author of "Responding to National Security Letters: A Practical Guide for Legal Counsel." He can be reached at 812-855-6403 or