Looks Like Sprint Did Challenge FISC Order For Call Data, Asked If It Was Serious

from the um...are-you-for-real? dept

Wed, May 14th 2014 3:19pm — Mike Masnick

Last September, we noted that the FISA Court had finally released a heavily redacted version of its attempt to justify the NSA's use of Section 215 of the PATRIOT Act to sweep up phone records on every phone call. It's noteworthy that this was the first time that the FISC had ever bothered to actually detail why it believed the program was legal, despite approving such bulk collection orders for years. In that ruling last fall (which had been written last July), one of the things that FISC Judge Claire Eagan stated was:

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

We found that to be fairly disappointing that no company had stepped up to challenge these orders. In fact, we noted just last month that an unnamed phone company was the first to challenge the records -- but it turns out that's not true. In fact, it turns out that what Eagan claimed in her ruling isn't true either.

In some newly declassified documents from the Director of National Intelligence, it's revealed that Sprint challenged the order, and basically forced the government to reveal the actual legal basis for the request. Sprint isn't named in the declassified legal filing, but people have confirmed that that's who it was.

The actual filing is a "Motion for Amended Secondary Order" from the DOJ, in which it's pretty clear that Sprint basically asked the government "are you fucking serious? you want us to hand over everything?" The motion from the DOJ is basically asking the FISA Court to repeat its original order with a legalese version of "yes, we're serious." As Julian Sanchez points out, it seems pretty clear that Sprint basically went back to the government and said could you repeat that, so that we actually know this is for real?

The Washington Post further claims that Sprint had a legal challenge drafted and ready to go, but was eventually persuaded by the DOJ and/or FISC not to go that far. Still, the idea that no one had questioned the legality of these orders doesn't appear to be accurate. Yes, we could have hoped that Sprint would have gone to greater lengths, but as we were just discussing this morning, the government puts immense pressure (often in the form of lies) on anyone who dares to challenge its ability to spy on everyone.

Motion for Amended Secondary Order (PDF)Motion for Amended Secondary Order (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: bulk collection, business records, fisa, fisc, nsa, phone records, section 215, surveillance
Companies: sprint

20 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

blaktron (profile), 14 May 2014 @ 3:24pm

It's only a lie if they don't follow through on their threats. See: Qwest.
[ link to this | view in chronology ]
- PRMan, 14 May 2014 @ 3:37pm
  
  Re:
  Interesting reading. I didn't know that happened to Qwest.
  [ link to this | view in chronology ]
Anonymous Coward, 14 May 2014 @ 3:36pm

Judge Claire Egan
� what Eagan claimed in her ruling isn't true either.

It was the least untruthful answer.
[ link to this | view in chronology ]
Anonymous Coward, 14 May 2014 @ 3:38pm

The fact that the FISA Court itself told Sprint to go home and not pursue the lawsuit, tells you everything you know about how much "oversight" they exercise over NSA.
[ link to this | view in chronology ]
- That One Guy (profile), 14 May 2014 @ 3:40pm
  
  Re:
  Also shows how much confidence they had that their 'totally legal and constitutional, we promise' orders would stand up in a real court.
  [ link to this | view in chronology ]
  - Anonymous Coward, 14 May 2014 @ 10:53pm
    
    Re: Re:
    Alternatively, it could just tell you how many skeletons the NSA know about...on other agencies.
    [ link to this | view in chronology ]
Anonymous Coward, 14 May 2014 @ 4:28pm

I just cant believe how crooked judges are in our government, how crooked the Department of Justice is and how crooked our executive branch is. Why are these people not having "accidents" like seems to happen to so many good people?
[ link to this | view in chronology ]
Anonymous Coward, 14 May 2014 @ 4:31pm

It's ok to hand over everyone's information, because the US Gov is handing out retroactive immunity like it's candy on Halloween!
[ link to this | view in chronology ]
Lurker Keith, 14 May 2014 @ 9:28pm

Someone needs to just sue
Someone needs to just come out & sue the US Government for breach of the Constitution. They could lay out which Amendments, but when I did an analysis a while back (not going to look for that post), about the only ones left unscathed were rules like voting rights, how to elect people or collect taxes, etc. (basics of how the government runs, in other words).

If they deny that such a suit could go forward, that only leaves Revolution as an option.

We also need an Amendment making lying while in Office (elected or not), or Campaigning for Office, illegal & include real punishments, & not just Impeachment.

Might as well do an Amendment outlawing keeping the Citizens in the dark while we're at it.
[ link to this | view in chronology ]
- Anonymous Coward, 15 May 2014 @ 7:29am
  
  Re: Someone needs to just sue
  They've tried numerous times, the suits keep getting kicked out because the government argues they lack proof of standing.
  [ link to this | view in chronology ]
  - Lurker Keith, 15 May 2014 @ 8:28am
    
    Re: Re: Someone needs to just sue
    I don't mean just over the spying. I mean bring a suit looking at every part of the Constitution, & calling the government out for violating all the Amendments they have or have tried. There's enough evidence available to the Public already.
    
    This is something that I'm pretty sure the Supreme Court was set up for, but I'm also fairly sure the procedure to do so has been lost to time.
    
    US Citizens v. US Government, RE: Constitutional Violations needs to happen soon.
    [ link to this | view in chronology ]
    - John Fenderson (profile), 15 May 2014 @ 8:40am
      
      Re: Re: Re: Someone needs to just sue
      IANAL, but I don't think that you can sue in that way. I believe that you have to be able to demonstrate actual (not just philosophical) harm from a specific act and then you can sue over that specific act.
      
      Technically, the solution to this problem is supposed to be a combination of the different branches of government holding each other's feet to the fire and the citizens voting out the bad actors and voting in good ones.
      tive.
      [ link to this | view in chronology ]
      - Pragmatic, 16 May 2014 @ 5:45am
        
        Re: Re: Re: Re: Someone needs to just sue
        Also NAL, but don't you need permission to sue the USG? Didn't something of the kind come up on TD a while ago?
        [ link to this | view in chronology ]
cc young, 14 May 2014 @ 10:20pm

qwest
When bush and co began its first huge data sweeps the only company that resisted was qwest. Pulled lush govt contracts from qwest, resulting in revenue drop. Then get sec to prosecute the ceo for misreporting. In trail, ceo not allowed to reference nsa requests etc. Now in prison. Since then telcos have been very compliant. (Not to mention Carslile Funds, Halliburton and other Bush, Cheny related corporations making money on the carnage.)
[ link to this | view in chronology ]
Anonymous Coward, 15 May 2014 @ 8:25am

http://en.wikipedia.org/wiki/Joseph_Nacchio

Joseph P. Nacchio was the only head of a communications company to demand a court order, or approval under the Foreign Intelligence Surveillance Act, in order to turn over communications records to the NSA.[8]
According to a Washington Post report, Nacchio claimed that the National Security Agency had asked Qwest in February 2001 to participate in a surveillance program; Nacchio said that after he declined, the NSA punished Qwest by dropping a contract worth hundreds of millions of dollars.[9]
[ link to this | view in chronology ]
Dan G Difino, 15 May 2014 @ 8:33am

Government in time of War
Problem with the way I see it is you have a war deaclared by a bunch of crazies with no solid governmental foundation, but ruthless and dangerously armed the same hating the US and meanwhile back at the homefront, there are a lot of citizens getting extremely upset at the disolving bill of rights and they are also quite well armed and dangerous. Now the Government has its two hands. On one hand, these terrorists who hate the US and on the other hand, these citizens who hate what the government is doing to the freedoms here at home. The top brass awaiting orders and the bunch in suits who crank out orders are getting confused. They are feeling the rogueness of what it feels like to be unliked outcasts in society, wherever they go outside of their comfort zones, they need all the security they can muster. But, they wield all the power, so its easy for them to wield it recklessly and blame it on the state of emergency. Its not like I've heard that they were actually asking the citizens to help in the fight except to register for the armed forces. Their answer is to disarm the citizenry and balls to walls whatever it takes to defeat the terrorists. If that means our economy and freedoms die, at least the government will survive. Now, the bigger problems are becoming clearer too. The US has bigger enemies than a bunch of idiots with guns. So, the government builds their underground bunker complexes, stocks them to the brim with hollow point ammunition it can't legally use in wars outside of the US, polishes up on its weather warfare and HAARP weapon and builds interment camps across America and starts selling off pieces of America, what really is not theirs to sell to appease the growing threats. Just how poised they must be with their hands on the buttons that will devastate the planet and our species. Is that enough to get people talking? Can there be any wonder?

Thats how it looks to me.
[ link to this | view in chronology ]
- Pragmatic, 16 May 2014 @ 5:48am
  
  Re: Government in time of War
  "...permits private prisons to be built across America..."
  
  FIFY
  [ link to this | view in chronology ]
Anonymous Coward, 15 May 2014 @ 10:29am

"This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it."

Abraham Lincoln
First Inaugural Address
Monday, March 4, 1861
[ link to this | view in chronology ]
- Pragmatic, 16 May 2014 @ 5:56am
  
  Re:
  Good luck with that. You'll be arrested and charged with terrorism offenses if you actually try it. No court has ever excused revolutionary action for philosophical reasons. That would make terrorism legal, after all. So... I'd concentrate on promoting third parties, finding an electable candidate, and working to secure enough votes to get them into office.
  
  That won't get you into trouble and would actually do a lot of good.
  [ link to this | view in chronology ]
Anonymous Coward, 15 May 2014 @ 11:24am

To "challenge" a court order ordinarily involves filing a formal paper with the court. The article makes no assertion that such a filing took place, so to make it sound as if the judge was lying is taking poetic license to new heights.
[ link to this | view in chronology ]