FISA Court Authorizes 'As-Is' Bulk Phone Collections For The Next Six Months

from the 'six-months-same-as-Patriot-Act'-civil-liberties-fire-sale! dept

Tue, Jun 30th 2015 2:46pm — Tim Cushing

"The more things change, the more everything is just Smith v. Maryland (1979)."

Or so the FISA Court notes in its latest order authorizing the continued collection of bulk phone records under… well, not Section 215, which expired, but under a "non-hyper-literal evil genie" reading of the contradictory forces temporarily in play thanks to the passage of the USA Freedom Act.

"Plus ça change, plus c'est la même chose," well, at least for 180 days. This application presents the question whether the recently-enacted USA FREEDOM Act, in amending Title V of FISA, 2 ended the bulk collection of telephone metadata. The short answer is yes. But in doing so, Congress deliberately carved out a 180-day period following the date of enactment in which such collection was specifically authorized. For this reason, the Court approves the application in this case.

The order notes that there was much more to consider in this renewal application. It nods to the expiration of Section 215 on May 31st and its brief return to its pre-Patriot Act form for roughly 24 hours before the passage of USA Freedom pushed the expiration date up until 2019. It notes the legal challenges brought against the bulk collection by Ken Cuccinelli and FreedomWorks, as well as the stipulations added to the collection by the surveillance reform bill.

The order denies Cuccinelli/Freedomworks' request to shut down the bulk collection entirely but does grant their request to serve as amicus curiae -- a new position provided for by the USA Freedom Act. This, however, is limited solely to motions already presented to the court by FreedomWorks and Center for National Security Studies. And the FISA Court finds the opposition to the government's claim of 180 days' worth of uninterrupted, unaltered bulk collections to be lacking in merit. The culprit is (partially) the USA Freedom Act itself.

The USA FREEDOM Act prohibits the FISC from issuing an order for production of tangible things without the use of a "specific selection term." USA FREEDOM Act§ 103(b), amending FISA § 501(c). This amendment and the related amendments set forth in sections 101 through 103 of the USA FREEDOM Act prohibit the government from acquiring tangible things in bulk under a FISA business records order. Crucially for purposes of this case, however, section 109(a) of the USA FREEDOM Act states that these amendments do not take effect until 180 days after enactment (November 29, 2015).

[...]

And if that was not clear enough, the USA FREEDOM Act also states that "[n]othing in this Act shall be construed to alter or eliminate the authority of the Government to obtain an order [under the business records provisions of FISA] as in effect prior to [the ban on bulk acquisition taking effect after 180 days]." USA FREEDOM Act §109(b). In passing the USA FREEDOM Act, Congress clearly intended to end bulk data collection of business records and other tangible things. But what it took away with one hand, it gave back - for a limited time - with the other.

The rest of the order is given over to dismissing a handful of other legal challenges to the bulk collection program, including the Second Circuit Court's finding that the program -- in its current form -- is not actually authorized by law.

The FISA Court, however, finds the appeals court's analysis "flawed" and reliant on "mischaracterizations." While the Second Circuit found the program "had no endpoint," the FISA Court claims the USA Freedom Act gives it one: November 29, 2015. This is the FISA Court shifting back into "hyper-literal evil genie" mode. The Section 215 collection has always had an "endpoint." It's just always been renewed by Congress, up until 2015's expiration, which was more a result of Snowden's leaks than an autonomous decision to give the program a true endpoint. Without a doubt, the modified collection will go through the same cycle of endless renewals.

The government's access to American phone records is never going to end completely, not as long as the government and FISA Court continue to rely on the Third Party Doctrine, as defined by the 1979 Smith v. Maryland decision. The FISA order refers to this decision repeatedly in its justification of ongoing bulk collections, either in pre-USA Freedom Act form or with the new limitations in place. As long as the government can rely on this large Fourth Amendment loophole, domestic surveillance in the form of bulk collections (as well as subpoena and National Security letter abuse) will continue. There is effectively no "endpoint" for these collections, as the Second Circuit pointed out.

The only thing "correct" about the FISA Court's analysis of these collections -- including the convenient elasticity of the term "relevant" -- is that a new Fourth Amendment privacy right doesn't simply spring into existence because these programs harvest information on millions of Americans. If the government -- and the courts -- aren't willing to extend protections to certain "business records" for an individual, the same lack of protection remains in place when it's hundreds of thousands who are affected.

For what it's worth, Section 215 (now Section 501) will no longer be collected and stored by the NSA after this six-month wind-down. These records will reside with telcos and be returned only in exchange for specific searches based on "reasonable articulable suspicion."

Unfortunately, this order doesn't bode well for the newly-created position of amicus curiae. Everything examined here in ad hoc, interim form is dismissed completely by FISA judge Michael Mosman. Barring a Supreme Court examination of bulk domestic collections or a revisiting of the issues central to Smith v. Maryland, arguing the public's case against bulk harvesting is going to be an exercise in futility.

Fisa Order (PDF)Fisa 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, fisa, fisa court, fisc, patriot act, phone records, section 215

14 Comments

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

Reader Comments

Subscribe: RSS

View by: Time | Thread

Goyo (profile), 30 Jun 2015 @ 2:58pm

Let me guess. The bulk data collection will last until copyright on Mickey Mouse expires, won't it?
[ link to this | view in thread ]
Rapnel (profile), 30 Jun 2015 @ 4:45pm

Yeah?
That's because the FISA court is il-fucking-legitimate and apparently any mother-fucker with a badge can do anything they want. Hell, they don't event need badges. Tell me I'm wrong.
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2015 @ 4:49pm

so they are choosing to openly ignore the laws and do what they want anyway.

Instead of secretly ignoring the laws against what they have been doing.

This is why I laugh at people that think they can change this criminal government with words and paper requests.

"Oh you got the law changed so they are no longer allowed to do this, but they are still doing it anyway. Well maybe if you ask them nicely they will stop committing treason"
[ link to this | view in thread ]
Rapnel (profile), 30 Jun 2015 @ 4:53pm

Re: Yeah?
Oh and don't even get me going on our Congressional whore house cruising for corps and Party patty parties. Thank you very much, America.
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2015 @ 7:42pm

Well there is only 1 way to change a government if word and paper will not do it.....
[ link to this | view in thread ]
Anonymous Coward, 30 Jun 2015 @ 9:33pm

Alternatives available
We are still part of Five Eyes so I've sure within the six months one of the participating fellows will take up the slack. Reciprocal access to the records gives the exact same end result, but a different entity doing the collection.
[ link to this | view in thread ]
MadAsASnake (profile), 1 Jul 2015 @ 3:59am

'The FISA Court, however, finds the appeals court's analysis "flawed" and reliant on "mischaracterizations."'

And this is really insulting. The entire bulk collection program is based on deliberate rewriting of the dictionary to mean totally different tings (those "cute" interpretations). While I'm am pretty sure the Second Circuit decision militates against FISA courts legal characterisations, I'm pretty sure they are interpreted correctly against any English dictionary and the intent of congress.

So, those "cute" interpretations are set to continue... what a surprise.
[ link to this | view in thread ]
Anonymous Coward, 1 Jul 2015 @ 6:52am

Glad there is abundant evidence of it's effectiveness and there isn't a growing portion of the populous that has requested and passed legislation to curb such activities...oh wait
[ link to this | view in thread ]
Anonymous Coward, 1 Jul 2015 @ 7:28am

and dont forget the new programs that are being built as we speak that will do the same, if not more than the old, expired one! the problem is, more than anything, that those making the decisions do not expect to be on the receiving end of a search, so dont give a toss about anyone else!
[ link to this | view in thread ]
Windsong01 (profile), 1 Jul 2015 @ 8:20am

Data collect and election strategist
Of courses the Repugs will keep the Data flowing to their Predictive Analytics software. It is critical to the planning of their digital voting machine hacking and mass manipulation ad campaign strategy. They need the data so they can make it look like a normal anomaly. We all know that KochCo have most likely hired the best psychological operations specialist and hackers that money can buy, just like they did in 2013.. And they need meta data to operate.
Anybody that thinks that the repugs will adhere a fair and honest National election after their losses in SOCTUS this week is rather naive.
[ link to this | view in thread ]
nasch (profile), 1 Jul 2015 @ 9:48am

Re: Data collect and election strategist
Of courses the Repugs...

You understand this is a program operated by the Democratic executive branch, right?
[ link to this | view in thread ]
Anonymous Coward, 1 Jul 2015 @ 10:09am

Like I said. A horse and pony show.
[ link to this | view in thread ]
nasch (profile), 1 Jul 2015 @ 10:27am

Re:
The usual saying is "dog and pony show".
[ link to this | view in thread ]
That One Guy (profile), 1 Jul 2015 @ 4:46pm

Re: Re: Data collect and election strategist
Shush you, you're not supposed to point out that the problem is both parties, that makes distracting people from the real issues with the 'My Tribe vs Your Tribe' tactic slightly more difficult.
[ link to this | view in thread ]