FISA Court Rubber Stamps Continued Collection Of All Phone Records, While DOJ Insists No One Can Challenge This

from the well-isn't-that-great dept

Fri, Jul 19th 2013 3:36pm — Mike Masnick

As of this morning, the Feds didn't want to say if they'd asked the FISA court to renew the order allowing it to collect the data on every single phone call from Verizon (and likely every other major phone carrier, though it's unclear if the orders for those others also expired today). However, as more and more people raised the question, the office of the Director of National Intelligence apparently recognized that they couldn't avoid answering the question forever, and admitted what everyone already knew: yes, it had asked for a renewal of the order and yes (of course) the rubber stamp FISA court had rubber stamped its approval:

Consistent with his prior declassification decision and in light of the significant and continuing public interest in the telephony metadata collection program, the DNI has decided to declassify and disclose publicly that the Government filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the Court renewed that authority.

The Administration is undertaking a careful and thorough review of whether and to what extent additional information or documents pertaining to this program may be declassified, consistent with the protection of national security.

It may be undertaking that internal review, but one thing that it does not want is to have to defend the whole shebang in court. Because the DOJ has now filed its response to the ACLU's lawsuit over the very same program (one of many such lawsuits, but one of the most high profile ones). The DOJ is asking for the case to be thrown out, of course. There are a bunch of reasons suggested, including arguing that the ACLU doesn't have standing. That's quite an argument, because the leaked order makes it clear that all customers of Verizon business services have had their data collected, and the ACLU just happens to be a customer. However, the DOJ argues "nuh uh," saying it doesn't actually count until someone in the government looks at the data it collected, and the ACLU has no proof that the government actually looked at the data.

Plaintiffs cannot meet this essential requirement, even assuming their metadata have been or will be collected, because it is no more than speculation that their metadata have been or ever will be among the very small percentage of the records in the database that are ever reviewed. They neither allege nor point to any basis on which to conclude that any identifier of theirs is among the small number authorized for queries under the RAS standard. See Complaint, IN 25-27. Indeed, the chances that their metadata will be used or reviewed in a query are so speculative that they lack Article III standing to seek the injunctive relief requested in their July 2 letter.

In other words, because the feds only look at a few records, they can collect them all. That's the theory they've been working under for a while, but that would require you to believe that there is no "search and seizure" of information that the government collects until it actually does something with that data. While the FISA court may agree with that, it's not at all clear that a real federal court -- or even the Supreme Court -- would do so too.

Next, the DOJ argues that since this data is collected under &sec;215 it's clearly legal, end of story. Furthermore, they claim that collecting all the data (all of it!) meets the standard of "relevant" to an investigation, as required by the statute -- though, as others have described, much of this requires a handy-dandy redefining of the word "relevant." Don't you just love the malleability of the English language?

The large volume of telephony metadata is relevant to FBI investigations into specific foreign terrorist organizations because to identify potential terrorist communications under this court-imposed query standard requires collecting and storing a large volume and high percentage of information about unrelated communications, to ensure that the much smaller subset of terrorist-related telephony metadata records are contained within the dataset. These data allow the Government to make connections related to terrorist activities over time and can assist counter-terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, including persons and activities inside the United States. If not collected and held by the Government, the metadata may not remain available for the period necessary for these national security purposes, because it need not be retained for that period by telecommunications service providers. Moreover, unless the data are aggregated, it may not be possible to identify telephony metadata records that cross different telecommunications networks. In short, because the telephony metadata must be available in bulk to allow the Government to identify the records of terrorist communications, there are "reasonable grounds to believe" that the data are relevant to authorized investigations to protect against international terrorism, as Section 215 requires, even though most of the records in the database are not associated with terrorist activity.

Basically, "all your data belong to us" because some of it might be relevant to some investigation at some undefined point. If that's the rule, then the government can collect anything and everything.

The DOJ also pulls out the expected Smith v. Maryland "third party doctrine" claim to say that the collection of the data from phone companies is legal because there's no expectation of privacy in the metadata about your calls held by a third party. We've pointed out multiple times how that stretches the interpretation of that case, perhaps well past the breaking point.

Either way, combine these two stories, and what you get is that, yes, the feds are still collecting every bit of data on every call you make... and there's no legal way you can challenge it because you don't have standing and it's all legal -- but not so legal that we're comfortable with it being tested in court. Doesn't that seem wrong?

154806869 2013 07 18 Govt Pre Motion Ltr to Court (PDF)154806869 2013 07 18 Govt Pre Motion Ltr to Court (Text)

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Filed Under: business records, doj, dragnet, fisa court, nsa, nsa surveillance, section 215
Companies: aclu

41 Comments

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Mason Wheeler (profile), 19 Jul 2013 @ 3:47pm

The DOJ is asking for the case to be thrown out, of course. There are a bunch of reasons suggested, including arguing that the ACLU doesn't have standing. That's quite an argument, because the leaked order makes it clear that all customers of Verizon business services have had their data collected, and the ACLU just happens to be a customer. However, the DOJ argues "nuh uh," saying it doesn't actually count until someone in the government looks at the data it collected, and the ACLU has no proof that the government actually looked at the data.

Maybe I'm missing something, but isn't that precisely the question at issue here?

Or, to put it another way, what's the difference between asking them to throw the case out based on this and asking for summary judgment that their acts are not illegal?
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Spaceman Spiff (profile), 19 Jul 2013 @ 4:08pm

And so?
Where is the documentation of those they are "observing"? If they cannot, or will not, confirm who they are tracking, then we must assume (as a rational human) that they are tracking EVERYONE! So, all of us have "standing". Sounds like we all need to file suit against the DOJ and the US Government about this. Let's then see how they deal with that!
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PRMan, 19 Jul 2013 @ 4:24pm

"Seizure" means "collecting"
They don't have to actually search it for it to be an illegal seizure.
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Anonymous Coward, 19 Jul 2013 @ 4:40pm

Wow they are really trying to go ahead with it. Their utter disrespect for their own citizens and their own constitution continues to baffle me.
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Anonymous Coward, 19 Jul 2013 @ 5:10pm

Re:
One is a ruling on whether or not what they are doing is legal.

The other is a ruling on whether or not the ACLU even gets to ask if what the government is doing is legal.
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Anonymous Coward, 19 Jul 2013 @ 5:13pm

Re: And so?
But you're not a terrorist are you? They are diligent to only look at terrorists. All of the branches of the government work together so this only effects terrorists and bad people.

So if you have grounds to sue them you are therefore a terrorist and will be arrested and deported.
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Anonymous Coward, 19 Jul 2013 @ 5:16pm

Re: "Seizure" means "collecting"
Seizure means "a seizure is the forcible taking of property," metadata isn't property and they didn't forcibly take yours.

The search is the issue if Verizon gave them the data willingly.
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One_Who_Has_Done_Database_Searching_For_Decades, 19 Jul 2013 @ 5:31pm

Searching for a Lawyer
As a data guy, I'd suggest a lawyer scrutinize the "look at" dodge. Does that mean looking with human eyeballs, or looking record by record with a machine? Further, for a machine inspection, how does that remove the human element? Many people made decisions to employ a machine to do their looking, and what that machine was coded (instructed) to "look" for. Someone like me had to write the search algorithm and push the Start Button to read the results.

You cannot find a "needle", a record of a phone call, a purchase of an airplane ticket, whatever, without digitally or visually "looking" AT ALL THE RECORDS. The notion that the feds have a Superman X-Ray vision that can only see the needles is comical, they look at everything. They have to, that is what a search is.
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Anonymous Coward, 19 Jul 2013 @ 5:55pm

Re: Searching for a Lawyer
Yeah but it's only one guy in some non disclosed location and he promised to be super cereal with it all.
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Anonymous Coward, 19 Jul 2013 @ 5:55pm

Re: Re: "Seizure" means "collecting"
"The search is the issue if Verizon gave them the data willingly."

Verizon did not give the data willingly. Don't you remember? There was a top secret court order that said they HAD to give the information, and forbade them from letting anyone know.

Even if you say that a person has no rights to their metadata (and I would disagree), the metadata is property of Verizon, and was taken from them.

Ask yourself what would happen if an employee of Verizon was caught giving this metadata to a random person. They would be fired, right? But if the metadata is worthless ("not property") and nobody has any expectation of privacy in it, why would that be? Gee, maybe that metadata DOES have value and there IS an expectation that the phone company will keep it private!
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Anonymous Coward, 19 Jul 2013 @ 6:29pm

Re:
I'm not baffled by it. I'm disgusted by it.

They are literally drunk with power. They are essentially saying that their power is absolute - we can do this and no one can stop us.

Power corrupts and absolute power corrupts absolutely. They are so corrupt that they are incapable of seeing it or admitting to it. This power has to be removed from them against their will. I feel this has to go to the supreme court because I don't believe congress or the president will reign it in.
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Anonymous Coward, 19 Jul 2013 @ 6:31pm

tell the truth Masncik (if you can)
phone companies is legal because there's no expectation of privacy in the metadata about your calls held by a third party

We've pointed out multiple times how that stretches the interpretation of that case, perhaps well past the breaking point.

Have you pointed it out multiple times Masnick? where, please show us where you have made this argument, (and anyone believed it).

Or could be please (once again) point that out here.

Or is this simply just another Masnick lie ?? normally when you say you pointed something out before, you provide links to your own articles where you have, but not in this case.

I would be interested in your explanation of this, I do not believe you have make that point many times in the past.

I believe now you are being inaccurate and deliberately obscure about it. To make people 'think' you have addressed this issue.
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FM Hilton, 19 Jul 2013 @ 6:31pm

Legal and illegal
Boy, does this come as a surprise: the FISA court is ok with collecting more records.

Tell me something I don't know.

What makes me mad is the sheer fact that nobody has the nerve/standing/power to stop this in its' tracks. It could be done, but it looks like everyone in power is a coward.

Hey, I'm a poet!
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Anonymous Coward, 19 Jul 2013 @ 6:35pm

Furthermore, they claim that collecting all the data (all of it!) meets the standard of "relevant" to an investigation,

how can you possibly tell if the data is relevant or not without having knowledge of the data (or the meta-data), you could probably guess to it's relevance. But without the data set (all of it), you cannot tell what will be relevant or not.

That's just common sense Masnick, it's not a re-definition (mismik style) of the word.. But IF it was they would have taken you as an example of changing the meaning of words to suit your argument.
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Anonymous Coward, 19 Jul 2013 @ 6:49pm

but that would require you to believe that there is no "search and seizure" of information that the government collects until it actually does something with that data.

that's true, just like a police officer can sit behind a sign on the highway, and surveillance all the cars going past, and only do something about the ones clearly breaking the law (like speeding).

or to check peoples 'history' as they try to get on a flight, but only 'do something' if the information they gathered warrants further investigation.

The courts have agreed to this, it is routine all over the world, including the US.

You arguments against it, seem very, very weak, and it is clear the courts do not agree with your assumption.

You 'guess' that other courts might not agree with it, is at best a stretch. Your predictions of court decisions is not a good one.

You do not display a good record of legal knowledge or how a judge or jury will rule. This is yet another example of this deficiency of yours.
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Anonymous Coward, 19 Jul 2013 @ 7:00pm

Re: Searching for a Lawyer
The phone company already has all the relevant records, NSA needs to determine what out of those millions of calls are calls to 'places of interest' so they would (have to) gather all that information, but ONLY LOOK AT the relevant ones, that being ones to relevant locations or numbers.

True, you cant find a needle in a haystack without first finding a lot of hay, you have to look at the hay to determine it is hay and not a needle. You also have to look at the needle to determine it is not hay.

this situation is even more difficult, because it's not a hay stack, it's a needle stack, with meta-data, they are looking for SPECIFIC needles in a stack of irreverent needles. They have to at some level look at all the needles and make that decision.

Just as a policeman looks at car after car on a road to make a decision what cars are breaking the law, and who ARE NOT. The cars who are not breaking the law, are watched as well.
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Anonymous Coward, 19 Jul 2013 @ 7:09pm

Re: Searching for a Lawyer
if you have done 'data-base' searching for years, you would know how trivial it would be to write a 1 line SQL statement that would find that needle without compromising innocent peoples rights.

If you can't do that, you are not telling the truth. I'm not an experienced data-base searcher, but an experienced SCADA systems engineer (SCADA systems are database based), I know how to use SQL though.

SQL is designed specifically for that purpose.

would it be something like

SELECT 'this record' FROM 'this dataset' IF THIS 'file' EQUALS a 'record' FROM 'this dataset.

SO look at all phone calls (on the companies records) the select only those records from your list that are call to number on THIS LIST then print out that list of matches.
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Anonymous Coward, 19 Jul 2013 @ 8:25pm

Re: tell the truth Masncik (if you can)
For someone obsessed with Mike, you sure do avoid reading anything he writes. It's quite strange.
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Anonymous Coward, 19 Jul 2013 @ 8:27pm

Re:
The cops sitting on the side of the road "surveillancing" every car don't get companies to give them a complete history of every single car and its passengers and their whereabouts and then record that information in perpetuity.

You are not a credible person, as always.
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Anonymous Coward, 19 Jul 2013 @ 8:46pm

Re: tell the truth Masncik (if you can)
Have you pointed it out multiple times Masnick? where, please show us where you have made this argument, (and anyone believed it).

Here's Google: http://www.google.com

In the box with the magnifying glass, type "masnick metadata privacy" (without quotes) and press 'Enter.' Click on the link of your choice and read (top to bottom, left to right).

I think the rest of us already know where it's been pointed out.

HTH
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Anonymous Coward, 19 Jul 2013 @ 8:51pm

Re: Re: Searching for a Lawyer
What is the problem with the government providing the 'this record' detail to Verizon instead? Since Verizon has 'this data set' and I'm sure there's at least 1 person at Verizon who would know SQL.

Since its so simple, and all....
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Anonymous Coward, 19 Jul 2013 @ 10:43pm

The Governments toned would be very different if this scandal happened on election year.
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Anonymous Coward, 19 Jul 2013 @ 11:33pm

Re: tell the truth Masncik (if you can)
Have you pointed it out multiple times Masnick? where, please show us where you have made this argument... normally when you say you pointed something out before, you provide links to your own articles where you have, but not in this case.

http://www.techdirt.com/articles/20130614/23172323482/al-gore-says-nsa-surveillance-is-unco nstitutional-not-american-way.shtml
http://www.techdirt.com/articles/20130625/10084623612/how-defen ders-nsa-dragnet-surveillance-are-stretching-1979-ruling-to-pretend-its-constitutional.shtml
http:/ /www.techdirt.com/articles/20130614/16265623479/rep-grayson-let-me-tell-nsa-there-is-no-threat-to-ou r-nation-when-i-call-my-mother.shtml
http://www.techdirt.com/articles/20130714/00490423793/yet-anot her-constitutional-scholar-explains-why-nsa-surveillance-is-unconstitutional.shtml
https://www.tech dirt.com/articles/20130628/11215723660/growing-number-senators-demand-answers-about-nsa-surveillance .shtml

Now watch darryl run and hide.
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Anonymous Coward, 20 Jul 2013 @ 4:37am

Re: Re: tell the truth Masncik (if you can)
I was asking for MASNICKS description of why it is not legal, not what Masnick has cut and pasted from someone else.

Do you NOT know the difference???..

Does masnick even have his own opinions ?
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Shon Gale, 20 Jul 2013 @ 8:01am

Welcome to ChinaUSA
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Anonymous Coward, 20 Jul 2013 @ 8:22am

Re: Re:
This is shaping up to be the ultimate test of a "system of checks and balances", and the separation of powers.

In the coming months we will see if a handful of judges have the fortitude to do what is right, and provide the check to the current abuse of power.
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B's Opinion Only (profile), 20 Jul 2013 @ 10:24am

The ACLU just needs to starts sending emails with terrorist threats in them. When the nice men in black come for a visit, they will be able to prove to the DOJ that their "metadata" was accessed and used.
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Anonymous Coward, 20 Jul 2013 @ 12:10pm

Let's see, wasn't it U.S. District Judge Colleen Kollar-Kotelly who defended the FISA court and that the FISA court judges are mad over this "rubber-stamping" of warrants?

First, let me point out that when a court grants a warrant and there is no opposing council to argue against the issuing of that warrant, then it actually is "rubber-stamping" the warrant. What should be pointed out is that neither the Federal Government nor the FISA court has deemed it necessary to appoint an attorney to serve as opposing council. Surely, there is at least one defense attorney in this entire country who can be read into the FISA court and agree not to disclose information so that they can serve to argue against these warrants.

Second, it's not a court because there is no relief by any citizen to seek redress against their government for this unwarranted intrusion on our privacy. The government can spin it all they wish but what this involves is an unwarranted attack on our privacy rights, RUBBERSTAMPED by the FISA court.
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Anonymous Coward, 20 Jul 2013 @ 1:40pm

as if the members of this court were, even for one second, going to let the fact that what they have been and still are up to with this 'rubber stamping' exercise and the absolute disgust that has been shown by millions of members of the public about the practice being 'OK'd' by this court and carried out by law enforcement, stop them doing more of the same! get a grip, please!!
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Anonymous Coward, 20 Jul 2013 @ 1:55pm

Re: Re: Re: tell the truth Masncik (if you can)
Read the articles FIRST.

THEN come back and be a douche.

Nothing like asking for something then bitching about it once you get it.
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Anonymous, 20 Jul 2013 @ 3:54pm

Re: Re: And so?
The good news is that you will be deported.
The bad news is that you will be deported to Guantanamo Bay.
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Anonymous, 20 Jul 2013 @ 3:59pm

Re: Re:
Not that we know of, you mean.
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Cloudsplitter, 20 Jul 2013 @ 8:30pm

Making an example
All of these companies have sold us down the river, and we may never Know the extent. But there is a track we can pursue, as we start the fight to take our country back. It's called the Death Penalty, and it was used with great effect during the Clinton administration, by the Gun Rights Community against Smith & Wesson, when that company stabbed Gun Rights Advocates, and gun owners in the back, and tried to cut a sweet heart deal with the Clinton administration. The resultant boycott drove the company into bankruptcy. Verizon is the perfect candidate, a vast client base feeding them money on a monthly basics, Stop Paying, the broad money/ payment boycott, will start to go to the financial bottom line very quickly, and effect the other companies involved in these treasonous acts by a government out of control, and their Colaberationist, and Quisling friends. We must break them, or we all will be wearing their chains. Boycott Microsoft, any person, or company, national, or international, using any of their services, is having their economic, business, and sercurity data, directly stolen from them through the direct actions of Microsoft for NSA. Anyone still using their software or equipment is looking disaster in the face, as software users and communities refuse to have their data tainted by running in a windows or server environment. A non massively encrypted Cloud, is a dead man walking, and the present companies must prove their systems clean, and mil grade massivly encrypted or die. All communication systems we now use, must encrypt or die, we enter the new world, and there is no goling back.
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Bergman (profile), 21 Jul 2013 @ 4:42am

Re:
If their actions are not illegal, would it not follow that anyone could collect metadata? Say, by purchasing it from a company?
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FM Hilton, 21 Jul 2013 @ 8:09am

Bingo!
"If their actions are not illegal, would it not follow that anyone could collect metadata? Say, by purchasing it from a company?"

Actually, the NSA isn't the only group collecting metadata, but for different reasons.

Many stores have 'loyalty cards' which contain all the information they can get from you, your purchases, and your shopping habits: http://www.ehow.com/about_5349024_loyalty-card.html

Just because it's not used against you doesn't mean the data isn't collected from you.

Remember that next time you go shopping.
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Eldakka (profile), 21 Jul 2013 @ 10:47pm

I need to know
Bernard Woolley: But, you only need to know things on a need-to-know basis.

Sir Humphrey Appleby: I need to know *everything*. How else can I judge whether or not I need to know it?

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ArkieGuy (profile), 22 Jul 2013 @ 7:58am

LOOK or look?
The NSA says that they only LOOK at certain records, but to be able to find those records they have to look at all records (even if if's just to index them).

So, by LOOKING for one record they SEARCH ALL OTHER RECORDS. To me this means that every search ABSOLUTELY involves the ACLU's records being searched (to exclude them) without a warrant.

Just like a search warrant for a single apartment, doesn't mean the police can search every other apartment in the complex (or heck, the whole country), this shouldn't mean that all users can be searched.
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Mike Raffety (profile), 22 Jul 2013 @ 12:08pm

What part of ...
PROBABLE and PARTICULAR do they not understand in the below?

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
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John Fenderson (profile), 22 Jul 2013 @ 2:08pm

Re: Re: "Seizure" means "collecting"
metadata isn't property and they didn't forcibly take yours.

Whether or not it's "property", they are forcibly taking it, and it absolutely is domestic spying.
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John Fenderson (profile), 22 Jul 2013 @ 2:11pm

Re: Re: Searching for a Lawyer
They have to at some level look at all the needles and make that decision.

Which is an excellent argument for why the whole program is unconstitutional and needs to be scrapped.
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John Fenderson (profile), 22 Jul 2013 @ 2:16pm

Re: Bingo!
Which is exactly why I don't use "loyalty cards" or pay at stores using anything except cash.

If only there was an equivalent mechanism to opt out of being spied on by the government.
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