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FISA Court: Congress, Phone Companies Could Have Challenged NSA’s Bulk Data Collection (But Didn’t)

The secret surveillance court, which authorizes requests for bulk data collection by the National Security Agency under the “business records” provision of the PATRIOT Act, has released a court opinion and order related to a recent request for “certain business records of specified telephone service providers.” The disclosure is, for the most part, unprecedented.

Intelligence agency leaders have scratched their heads and displayed bewilderment when asked if Foreign Intelligence Surveillance Court (FISC) opinions could be made public in some form. They have claimed classified information is so intertwined in opinions that they could not be redacted and released. While this disclosure is not a signal that FISC judges are going to begin to regularly release their opinions to the public voluntarily, it does show that it can be done and there should be no tolerance for excuses that only serve intelligence agencies preference for secrecy.

The opinion and order indicates that, on August 29, the FISC authorized another round of collection of “telephone company business records,” which consist of a very large volume of each company’s call detail records or telephony metadata.” But, according to the opinion, the requested records “expressly exclude the contents of any communication; the name, address or financial information of any subscriber or customer or any cell site location information (CSLI).”

This is the bulk data collection that touched of the first wave of protest and was revealed when The Guardian‘s Glenn Greenwald published a story on June 6 revealing how the NSA was collecting the phone metadata of Verizon customers on a daily basis. The data is produced on a daily basis for a period of 90 days to “obtain foreign intelligence information” to protect against “international terrorism.” The court and intelligence agencies argue it is authorized under the “business records” provision or Section 215 of the PATRIOT Act.

The opinion includes the legal justification for collecting this data in bulk. It cites the Supreme Court when arguing the collection does not violate the Fourth Amendment and citizens have “no legitimate expectation of privacy in the information.”

“The telephone user, having conveyed this information to a telephone company that retains the information in the ordinary course of business, assumes the risk that the company will provide that information to the government,” the opinion states. There is “no legitimate expectation of privacy in telephone numbers dialed.”

The opinion also argues, “Where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly-situated individuals cannot result in a Fourth Amendment interest springing into existence.”

What is remarkable about the rest of the opinion is that it appears to have been written to challenge perceptions of the court as government collaborators. The court appears to have wanted to clear its name and make the case that they have not been derelict in their duty by rubber stamping surveillance; in fact, if anyone has been derelict and rubber stamped surveillance it is the Congress or the telephone companies.

Recall, Verizon Executive Vice President Randy Milch reacted to The Guardian story by suggesting the company had no choice but to turn over the records:

You may have seen stories in the news about a top secret order Verizon allegedly received to produce certain calling information to the U.S. government.

We have no comment on the accuracy of The Guardian newspaper story of the documents referenced, but a few items in these stories are important. The alleged court order that The Guardian published on its website contains language that:

  • compels Verizon to respond;
  • forbids Verizon from revealing the order’s existence; and
  • excludes from production the “content of any communication . . . or the name, address, or financial information of a subscriber or customer.”

Verizon continually takes steps to safeguard its customers’ privacy. 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.

According to the opinion, this statement by Milch was completely disingenuous. Congress included an “enhanced process” under Section 215 for challenging government requests for records because there is such a low threshold the government has to meet to compel production.

“To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order,” FISC judge Claire V. Eagan wrote. “Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.”

Recall, former House Judiciary Chairman and author of the PATRIOT Act, Republican Representative Jim Sensenbrenner, wrote an op-ed after the Verizon order was published. He claimed Congress never authorized this kind of surveillance and that “Congress intended to allow the intelligence communities to access targeted information for specific investigations.”

“How can every call that every American makes or receives be relevant to a specific investigation?” he asked. But, as Marcy Wheeler has previously highlighted, he had pushed language that would grant the government broad discretion to collect data reasonably expected to be “foreign intelligence information not concerning a United States person” and “relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities”—which is almost exactly what the FISA court believes grants it the authority to allow the government to engage in bulk data collection.

The opinion describes how, “prior to May 2011 congressional votes on Section 215 re-authorization,” the intelligence committees of both Houses of Congress were shown a “Report on the National Security Agency’s Bulk Collection Programs for USA PATRIOT Act Reauthorization” put together by the Executive Branch.

This report informed Congress, “‘Under FISA Court authorization pursuant to the ‘business records’ authority of the FISA (commonly referred to as ‘Section 215′), the government has developed a program to close the gap’ regarding a terrorist plot.” And, the “NSA collects and analyzes large amounts of transactional data obtained from certain telecommunications service providers in the United States” and that program operates on a ‘very large scale.'”

The FISA court believes “each member of Congress had an ‘opportunity to know how Section 215 was being implemented under this Court’s Orders,” according to Eagan. There was ample opportunity to gain “full knowledge of the scope of the implementation of Section 215” and better understand the “underlying legal interpretation.”

A recent Associated Press-NORC Center for Public Affairs Research survey found “a majority of Americans disapprove of the Foreign Intelligence Surveillance Court and the process by which the government gets approval for its telephone and internet surveillance programs.” Only “12 percent of Americans favor the process in which a federal court, whose proceedings are classified and where no attorney is present to argue against the government’s case, controls the US government’s ability to analyze the information it collects on telephone and internet communications, and 59 percent oppose it.”

FISA Court judges are fully aware of this and want the public to redirect its anger at the phone companies or Congress, which have been complicit in allowing the NSA surveillance if they really would like to see the bulk data collection program ended.

Near the conclusion of the opinion, Eagan writes:

This Court is mindful that this matter comes before it at a time when unprecedented disclosures have been made about this and other highly-sensitive programs designed to obtain foreign intelligence information and carry out counterterrorism investigations. According to NSA Director Gen. Keith Alexander, the disclosures have caused ‘significant and irreversible damage to our nation.’…In the wake of these disclosures, whether and to what extent the government seeks to continue the program discussed in this Memorandum Opinion is a matter for the political branches of government to decide.

In other words, don’t look at us. The people with the power to end all this are in Congress, the White House or other agencies in the Executive Branch. We just review the authorizations and determine if they are within the broad limits outlined and, in this case, the government’s request for data is reasonable to us.

FISC Chief Judge Reggie B. Walton has admitted that the court “lacks the tools to independently verify how often the government’s surveillance breaks the court’s rules that aim to protect Americans’ privacy.” He told The Washington Post that it is also incapable of checking “the veracity of the government’s assertions that the violations its staff members report are unintentional mistakes.”

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie B. Walton, said in a written statement to The Washington Post. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”

Just about every instance of abuse committed by NSA analysts is claimed by officials like Director of National Intelligence James Clapper to be a mistake, a result of incompetency or an inability to understand the technology.

If the FISC knows that it cannot determine whether the NSA is covering up abuses of privacy by claiming they were mistakes, shouldn’t they be responsible for authorizing surveillance that may result in abuse? Possibly, but the Congress and the Obama Administration are responsible for maintaining a secret surveillance court that is an impotent check on the power of the national security state to make requests for records for whatever surveillance operation it deems necessary. And the telephone companies are responsible for pretending like this is just the way it goes when the reality is they have never opposed this program that has made numerous Americans outraged.



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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."