DOJ To Court: Hey, We're Shutting Down Section 215, So We Can Probably Stop Arguing About The Legality Of Bulk Collection

from the you-sort-of-won!-what-more-do-you-want? dept

Tue, Jul 28th 2015 8:51am — Tim Cushing

Just as James Clapper's office was officially announcing the death of the bulk phone metadata program (ending November 29th, with three months of post-wind-down wind-down for data analysts), the DOJ was filing a motion in the Second Circuit Court of Appeals basically arguing that its finding that the program was illegal really doesn't matter anymore.

According to the DOJ, there really is no program -- at least if you don't count the six months the NSA has to make the move to the more targeted USA Freedom version. So this discussion about which program isn't authorized by which PATRIOT Act provision is… well, not completely moot, but like pretty much literally weeks away from moot, so why are we wasting our time here [EXASPERATED SIGH].

Plaintiffs’ claims will be moot when the bulk collection of telephony metadata under Section 215 ends on November 29, 2015, though they are not moot right now. On that date, the statutory authority for the Section 215 bulk telephony-metadata program will expire, and the data previously collected and held under that program will not be used in the future for intelligence-gathering or law-enforcement purposes. In the meantime, however, the Court should respect Congress’s decision to create an orderly transition away from the Section 215 bulk telephony-metadata program. Especially in light of Congress’s considered judgment that this program should continue for this limited period, plaintiffs are not entitled to any of the relief they request.

In support of its argument that the court should ignore its own findings and just listen to what the FISA Court said (and what legislators didn't say, but obviously intended), the government points to its own Tumblr post (certainly a historical moment in its own right) detailing the specifics of the end of Section 215.

On July 27, 2015, the Office of the Director of National Intelligence (ODNI) issued a public statement that the NSA has determined that “analytic access to that historical metadata collected under Section 215 . . . will cease on November 29, 2015,” at the end of the transition period. See Statement by ODNI on Retention of Data Collected Under Section 215 of the USA PATRIOT Act, available at http:// icontherecord.tumblr.com/post/125179645313/ statement-by-the-odni-on-retention-of-data (ODNI July 27 Statement). Thus, after that date, no further bulk collection of telephony metadata will take place under the Section 215 program, and the historical telephony metadata will not be used for intelligence or law-enforcement purposes and will not be disseminated.

To sum up: these past abuses should no longer be of concern as the data is going to be flushed (for the most part) within the next nine months. To better enable said data flush, the Second Circuit Court might want to wrap up the ACLU's suit (and hasten the end of the EFF's) so that no data is still being "preserved" past the November 2015 dump point.

To that end, the DOJ constantly reminds the Second Circuit that the FISA Court really has a handle on these sort of things and why don't we just leave it to the pros.

The FISC was right that Congress authorized the Section 215 bulk telephony-metadata program to continue during the six-month transition period. [p. 6]

As the FISC correctly noted, Congress’s decision to delay that ban for six months is a powerful indication that it intended to permit bulk collection in the interim period. [p. 9]

The FISC was thus correct when it observed that “after lengthy public debate, and with crystal clear knowledge of the fact of ongoing bulk collection of call detail records” Congress “chose to allow a 180-day transitional period . . . .” June 29 FISC Op. at 11. This Court need not and should not determine whether Congress “ ‘ratif[ied] the FISA Court’s interpretation of ’ ” Section 215. [p. 11]

This filing, like its Tumblr statement announcing the official end of the collection, emphasizes the single aspect of the Section 215 bulk collections that has been the focus of this litigation and most legislative efforts: phone metadata. The authorization, even in its altered, post-USA Freedom Act form -- provides for much more than just this one type of collection. The DOJ goes so far as to call the USA Freedom Act a "ban" on bulk, untargeted collections, when it actually doesn't go quite that far.

Marcy Wheeler points out that the DOJ may be less interested in the outcome of this ruling as it is with the implications of the EFF's litigation. What could be uncovered if the NSA is forced to turn over relevant records from its bulk metadata collection is more illegal -- or at least unauthorized -- collection activity.

I believe both ACLU and EFF’s phone dragnet client Counsel on American Islamic Relations, had not only standing as clients of dragnetted companies, but probably got swept up in the two-degree dragnet. But CAIR probably has an even stronger case, because it is public that FISC approved a traditional FISA order against CAIR founder Nihad Awad. Any traditional FISA target has always been approved as a RAS seed to check the dragnet, and NSA almost certainly used that more back when Awad was tapped, which continued until 2008. In other words, CAIR has very good reason to suspect the entire organization has been swept up in the dragnet and subjected to all of NSA’s other analytical toys.

EFF, remember, is the one NGO that has a preservation order, which got extended from its earlier NSA lawsuits (like Jewel) to the current dragnet suit. So when I Con the Record says it can’t destroy all the data yet, it’s talking EFF, and by extension, CAIR. So this announcement — in addition to preparing whatever they’ll file to get the Second Circuit off its back — is likely an effort to moot that lawsuit, which in my opinion poses by far the biggest threat of real fireworks about the dragnet (not least because it would easily be shown to violate a prior SCOTUS decision prohibiting the mapping of organizations).

This announcement by Clapper's office, followed shortly thereafter on the same day by the filing of its response in the Second Circuit case, certainly gives the appearance that the NSA has lifted the corner of the rug and is just waiting for the signal to start sweeping any undiscovered abuses -- along with those previously exposed -- under it. That the expiration of the authority and the passage of the USA Freedom Act may have provided it with a better broom is unexpectedly fortuitous.

ca2 NSA 20150727 (PDF)ca2 NSA 20150727 (Text)

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Filed Under: 4th amendment, bulk records, doj, james clapper, lawsuits, nsa, odni, section 215, surveillance, usa freedom act
Companies: aclu, eff

25 Comments

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grey pupon is my orange juice, 28 Jul 2015 @ 9:08am

This is entirly predictable
It was most likely the reason for all the noise and furry signifying nothing over USAFree-DUMB, it short circuits the second circuit court decision, who themselves knew this was in the offing, and now we don't have to talk about it, shut-up and comply, resistance is futile.
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- Sheogorath (profile), 28 Jul 2015 @ 9:30am
  
  Re: This is entirly predictable
  It was most likely the reason for all the noise and furry signifying nothing over USAFree-DUMB [...]
  I need brain bleach, badly. I just envisioned FISA and the USA Freedom Act yiffing together. D:
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  - tqk (profile), 28 Jul 2015 @ 10:58am
    
    As a public service ...
    I just envisioned FISA and the USA Freedom Act yiffing together.
    
    yiffing:
    Usually refers to cyber sex between two or more members of the furry fandom. Originally refers to the sound that foxes make when mating. Members of the furry fandom may use the term to refer to actual sexual contact, usually in a lighthearted manner.
    
    It is also a term used at furcons to inquire about sexual intentions between fursuiters.
    
    Good. Grief.
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    - Sheogorath (profile), 28 Jul 2015 @ 1:42pm
      
      Re: As a public service ...
      Well, you can't blame me. It was grey pupon is my orange juice who started it by talking about "noise and furry"!
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AnonCow, 28 Jul 2015 @ 9:14am

I'm just about done raping this woman and I promise not to do it again, so there is no need to arrest or prosecute me...
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mcinsand, 28 Jul 2015 @ 9:15am

Let's see what happens if we use this defense when caught speeding
Imagine that you're going 90 in a 65, and a police officer stops you. When he stops you, you're beside the road, so you're no longer speeding. How well would the NSA's defense work for you? Yes, you were speeding a few minutes before and, yes, it was illegal. However, now that you're stopped beside the road and not speeding, the illegal activity just prior to stopping is irrelevant.

Yeah, right.
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- Anonymous Coward, 28 Jul 2015 @ 9:24am
  
  Re: Let's see what happens if we use this defense when caught speeding
  Unfortunately for you highways have a minimum speed of 40, so they can still write you up.
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  - mcinsand, 28 Jul 2015 @ 9:29am
    
    Re: Re: Let's see what happens if we use this defense when caught speeding
    If only they would enforce the speed minimum, then our highways would be much safer. While a wreck is more dangerous when high speeds are involved, but wrecks are far more likely when someone that doesn't belong on the highway is poking along and congesting traffic.
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    - John Fenderson (profile), 28 Jul 2015 @ 12:05pm
      
      Re: Re: Re: Let's see what happens if we use this defense when caught speeding
      I don't understand how minimum speed limits are enforceable. Where I live, the flow of traffic is frequently below 40 MPH. It's physically impossible to drive faster.
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  - Anonymous Coward, 28 Jul 2015 @ 10:51am
    
    Re: Re: Let's see what happens if we use this defense when caught speeding
    I remember when the US interstate highways had minimum speed limit signs; the last time I saw one was in the 1970s. AFAIK such things are no longer part of law.
    
    The law does provide for "obstruction of traffic" if one is driving too slow for conditions. I've never seen it enforced, however.
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    - John Fenderson (profile), 28 Jul 2015 @ 12:04pm
      
      Re: Re: Re: Let's see what happens if we use this defense when caught speeding
      According to the highway dept, if there's a minimum speed limit sign, it is legally enforceable. However, they are considering doing away with minimum speed limits across the board.
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- Ninja (profile), 28 Jul 2015 @ 10:03am
  
  Re: Let's see what happens if we use this defense when caught speeding
  Exactly. It does not work that way. You cannot accuse someone of something done in the past if the law that made it illegal was not valid at that time. They should and hopefully will be judged under the set of laws that were valid at that specific point and under the Constitution itself. The fact that said laws were replaced by another one is irrelevant.
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Anonymous Coward, 28 Jul 2015 @ 9:37am

Crap that shouldn't have been 'legal' now ending, only because a bright light was put on it. This only leads one to assume that there are plenty more dark corners for other 'legal' bulk collection programs to live on...
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- Anonymous Coward, 28 Jul 2015 @ 9:41am
  
  Re:
  They probably have found another loophole to keep the bulk collection going in some other way.
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  - Anonymous Coward, 28 Jul 2015 @ 9:59am
    
    Re: Re:
    They gave copies to the other five eyes and can now honestly say they destroyed the data(in their control). The other nations now will do all the unavailing themselves, negating half of the role of the NSA in the first place. You know protecting our private data from being captured...by anyone.
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zippy, 28 Jul 2015 @ 9:40am

The only way to be sure the NSA can't do any more mass surveillance is to destroy their headquarters and their datacenters. All of them. Not that that will ever happen. Most of the sheeple are too inert to realize they're part of a corrupt system that seeks only to sustain its own bloated existence as the expense of all other things.
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Not me, 28 Jul 2015 @ 10:13am

tumblr name says it all
Hey, apparently there IS a little honesty going on here...I 'con' the record.
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Anonymous Coward, 28 Jul 2015 @ 10:54am

> ... Especially in light of Congress’s considered judgment that this program should continue for this limited period.

Congress cannot "permit" illegal activity to continue. Congress can "legislate" that the activity is to be no longer illegal, but it cannot "permit" it.
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Anonymous Coward, 28 Jul 2015 @ 2:03pm

Can an "ear worm" be non-musical? Every time I read about any type of bulk surveillance reform, I can't seem to get the phrase "under this program" out of my head...
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- Anonymous Coward, 28 Jul 2015 @ 2:08pm
  
  Re:
  Jedi government trick. This is not the program you are looking for.
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- Anonymous Coward, 28 Jul 2015 @ 2:08pm
  
  Re:
  Jedi government trick. This is not the program you are looking for.
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Anonymous Coward, 28 Jul 2015 @ 5:48pm

If its never declared illegal, then it isn't illegal.

Business as usual until the people find out about the new program then they'll have to change the program name again.
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Anonymous Coward, 29 Jul 2015 @ 1:51am

What are the odds they just renamed this program under a new name doing the exact same thing
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limbodog (profile), 29 Jul 2015 @ 7:36am

And if you believe that, I've got a bridge to sell you.
Considering the alarming lack of honesty in regards to all things related to surveillance on the American public, are we really expected to believe them when they say that they're going to stop doing what they only admitted to doing after being caught red-handed?
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- tqk (profile), 29 Jul 2015 @ 3:24pm
  
  Re: And if you believe that, I've got a bridge to sell you.
  ... they're going to stop doing what they only admitted to doing after being caught red-handed?
  
  Meanwhile, all the other !@#$ they're doing which you haven't yet caught them doing carries on ... What a fun game this is.
  
  Hey, it's better than being a slave in the Roman Empire, yeah? Still, not what I expected of this century.
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