FISA Court Shuts Down DOJ's Attempt To Hold Onto Section 215 Metadata Indefinitely

from the not-much-'justice'-over-at-the-DOJ dept

As we recently covered, the DOJ asked the FISA court to extend the disposal deadline of phone metadata from the usual five years to an indefinite period of time, supposedly in order to preserve evidence it might need to present in lawsuits filed against the government. (Not that the DOJ has any intention of ever turning this information over, no longer how long the NSA holds onto it…) Somewhat surprisingly, (outgoing) FISC judge Reggie Walton has turned the DOJ's request down.

The DOJ contended it had a "duty" to preserve evidence -- a duty that supposedly superseded the destruction requirements of the metadata collection. Judge Walton calls the DOJ out for this claim ("the Court rejects this premise"), but more damningly, calls bullshit on the DOJ's citations.

The government cites three cases in support of its position: Inc. v. So, 271.R.D. 13 (S.D.N.Y. 2010), Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009), and Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). Although the destruction of electronic records was an issue in all three cases, R.F.M.A.S. at 40; at 287-88; Zubulake at 434, none of these cases involved a conflict between a litigant's duty to preserve electronic records and a statute or regulation that required their destruction. They merely demonstrate that, when triggered, a civil litigant's duty to preserve relevant evidence includes electronic records and that duty trumps a corporate document destruction policy. The Court has not found any case law supporting the government's broad assertion that its duty to preserve supersedes statutory or regulatory requirements.

So, that's the DOJ's "legal basis" for the indefinite retention of bulk metadata: preservation of evidence statutes governing private entities. It somehow hoped to treat the FISA court as nothing more than a regulatory speed bump rather than the fine line between national security and outright civil liberty abuse. The FISA court points out that what it's asking for is much more significant than it seems to realize. As Walton reminded the NSA in one of his earlier court orders, without the minimization procedures in place, the Section 215 collection would be unconstitutional.

In other words, nearly all of the call detail records collected pertain to communications of non-U.S. persons who are not the subject of an FBI investigation to obtain foreign intelligence information, are communications of US. persons who are not the subject of an FBI investigation to protect against international terrorism or clandestine intelligence activities, and are data that otherwise could not be legally captured in bulk by the government.

These are the same call records the DOJ wants to hold indefinitely, and its only justifications aren't even relevant to the data in question, as Judge Walton points out:

In sharp contrast with the document retention policies of corporations, the restrictions on retention of United States person information embodied in FISA minimization procedures are the means by which Congress has chosen to protect the privacy interests of United States persons when they are impacted by certain forms of intelligence gathering.

Walton points out the danger of granting the DOJ this extension, saying doing so would "significantly increase" the chance of the retained metadata being improperly used or disseminated. There is little doubt the NSA would have enjoyed an indefinite extension on the destruction data, given the "collect it all" proclivities of its various directors. But the DOJ's argument is ultimately empty.

The argument is also highly suspect. As noted in our earlier story, the DOJ made no similar effort to retain data pertaining to a 2008 lawsuit with the EFF -- data which would have been disposed of in 2013. This data likely wouldn't have helped the DOJ, or at the very least, would have resulted in a long legal battle to keep it hidden.

With that in mind (and being naturally cynical), it's tempting to view the DOJ's weak effort to hold onto the data as a deliberate ploy to help it keep this metadata from ever appearing in court. Having this granted would have been a small win for the NSA, which could then hold onto data presumably forever. But old data isn't nearly as useful as fresh data, as the NSA knows. The bigger win would be the disposal of data related to lawsuits. The FISA court shooting down this request means that, if the NSA/DOJ buy enough time, the metadata will never appear in court.

The government seems to be dealing itself a lot of winning hands in the ongoing NSA debacle, leaving the surveilled public damned with both do's and don'ts.

[Also worth a read is Marcy Wheeler's coverage of this decision over at Emptywheel, where she points out that this is possibly the first time the FISA court has actually attempted to establish a limit on what the government finds "relevant" to its War on Terror.]

Filed Under: doj, fisa, fisc, metadata, section 215

James Clapper: We Totes Shoulda Told You About Section 215

from the does-not-compute dept

Ever since Edward Snowden leaked information about the massive government surveillance being done both domestically and abroad by the NSA, the refrain that such leaks have put people in danger and harmed national security have been ongoing. Supporters of the NSA have specifically noted that leaks about section 215, the PATRIOT Act section that the NSA believes gives it the power to collect all telco traffic records, will prove to be absolutely catastrophic to our safety. Spy bigwig James Clapper himself wrote to Ron Wyden that section 215 leaks "will do significant damage to the intelligence community's ability to protect the nation."

Now, in a move that will surprise nobody, since Clapper is a proven liar, he has reversed course and says that the government should have told the American people about section 215.

“What did us in here, what worked against us was this shocking revelation,” he said, referring to the first disclosures from Snowden. If the program had been publicly introduced in the wake of the 9/11 attacks, most Americans would probably have supported it. “I don’t think it would be of any greater concern to most Americans than fingerprints. Well people kind of accept that because they know about it. But had we been transparent about it and say here’s one more thing we have to do as citizens for the common good, just like we have to go to airports two hours early and take our shoes off, all the other things we do for the common good, this is one more thing.”

Unbelievable. So the very same disclosure that turned Edward Snowden into a traitor and was going to do so much harm to American security is something Clapper says he should have done in the first place? With such an admission, where is the backlash against the continued prosecution of Snowden in the court of public opinion? Where is the embarrassed apology for lying to Americans about the dangers of the disclosures made previously? Lies, I might add, designed to scare the living hell out of people and chill speech, disclosures, and journalism.

I typically try to find some humor in every situation, but this kind of flip-flopping is bullshit on a level hitherto unseen. The credibility gap between Clapper and his ilk versus Edward Snowden might as well be the Grand Canyon. I'm a bit amazed the man has been allowed to keep his job, never mind his still being allowed to make media statements.

Filed Under: edward snowden, james clapper, nsa, privacy, section 215

NSA, Which Once Claimed It Needed Every Phone Record, Now Claims It Actually Gets Less Than 20%

from the is-that-supposed-to-be-comforting? dept

Ever since the first Snowden leaks about the way the NSA interpreted Section 215 of the PATRIOT Act to allow it to collect all call records from various telcos, one of the key arguments that has been made by the program's defenders is that it was necessary to have every single call record to make the important connections between terrorists. Multiple officials have argued that to find the "needle in the haystack" they need to be able to collect the whole haystack. In fact, that was part of the argument made by the few judges who have reviewed and approved this program. In the very first FISC ruling that actually analyzed the legality of the program (as opposed to earlier approvals that never bothered with an analysis), the court clearly indicated that it was necessary to collect everything:

The government depends on this bulk collection because if production of the information were to wait until the specific identifier connected to an international terrorist group were determined, most of the historical connections (the entire purpose of this authorization) would be lost. The analysis of past connections is only possible "if the Government has collected and archived a broad set of metadata that contains within it the subset of communications that can later be identified as terrorist-related." Because the subset of terrorist communications is ultimately contained within the whole of the metadata produced, but can only be found after the production is aggregated and then queried using identifiers determined to be associated with identified international terrorist organizations, the whole production is relevant to the ongoing investigation out of necessity.

That legal tapdancing aside, it basically argues that the only way this data makes sense is if the NSA has all of it. Similarly, when Judge William Pauley found the program legal late last year, he too relied on the argument that the NSA needed all the data.

And yet... it appears that they're actually not getting that much data. A new report from the Washington Post claims that the NSA is actually only getting between 20 to 30% of the data. The Wall Street Journal rushed out a quick story claiming it's actually less than 20%.

Apparently, while the NSA has gotten approvals to get data on landline calls from Verizon and AT&T, it actually hasn't yet gone after the same data from most mobile phone calls. For example, even though it gets Verizon landlines, it apparently does not collect the data on Verizon Wireless. Nor does it collect the data from T-Mobile. There are somewhat conflicting reports as to why this is, but the Washington Post piece suggests that the incident in 2009 in which FISC chief judge Reggie Walton nearly shut the whole program down over compliance failures has basically stopped the NSA from updating the program, because everywhere they look there have been more (you guessed it) compliance failures, and they're simply not set up to handle mobile phone data. Update: And some are questioning the whole claim here, noting that the orders that have been revealed do appear to request IMEI and IMSI data -- information that is only associated with mobile phones.

“It’s not simply the ability to go to the court and order some vendor to give you more records, but you have to make sure that the [agency’s collection system] is prepared and ready to take the data and meet all the requirements of the court,” the former official said. “You don’t want to turn it on and get hundreds of millions of records, only to find out that you’ve got the moral equivalent of raw sewage spilling into the Chesapeake Bay.”

The process of preparing the system can take months, said the senior U.S. official, adding that mobile calls have different data elements than land-line calls. “That’s a really detailed set of activities where we get sample data in, and we march it through our systems,” the official said. “We do that again and again and again. We put in auditing procedures to make sure it works. So before we turn on that mobility data, we make sure it works. . . . It’s very complex.”

Compounding the challenge, the agency in 2009 struggled with compliance issues, including what a surveillance court found were “daily violations of the minimization procedures set forth in [court] orders” designed to protect Americans’ call records that “could not otherwise have been legally captured in bulk.”

As a result, the NSA’s director, Gen. Keith Alexander, ordered an “end-to-end” review of the program, during which additional compliance incidents were discovered and reported to the court. The process of uncovering problems and fixing them took months, and the same people working to address the compliance problems were the ones who would have to prepare the database to handle more records.

Basically, there have been so many compliance problems that the NSA has had to work overtime to try to fix their systems and prepare for an influx of mobile phone data. The Wall Street Journal version of the report says that part of the problem is the NSA can't figure out how to strip location data from mobile phone data, and because collecting that information might lead to compliance issues, they haven't been able to figure out how to do it without running into more trouble down the road.

But fear not, surveillance state lovers, the NSA is getting ready and its goal is to get back to collecting nearly every phone record from every phone provider. Once the systems are in place, they appear to fully intend to send over some requests to the FISA court to get all those mobile operators to comply as well. One hopes that, this time, with so much more awareness of what's going on, at least one of those mobile operators will fight back.

Either way, this whole thing actually shows just how ridiculous the NSA's claims are that it absolutely needs all this data to keep us safe. The very fact that this report is coming out in both the Washington Post and the Wall Street Journal at nearly the same time suggests a stupid sort of PR attempt on the part of the NSA, which seems to think that after months of insisting they need it all, they can now placate people by saying "well, we really only collect about 20% of the data (though we're hoping to collect it all)." Not only does this actually highlight the widespread compliance problems with this data, it further shows that the argument that somehow collecting it all is necessary to keep us safe is just completely wrong.

Filed Under: bulk metadata, cell phones, compliance issues, location data, mobile phones, nsa, phone records, section 215, surveillance

FISA Court Agrees To Changes That Limit NSA's Ability To Query Phone Records

from the it's-something dept

While we were mostly disappointed by President Obama's speech concerning his plans for reforming surveillance efforts, there were a few significant suggestions, with the most major one being a limit from being able to explore "3 hops" down to "2 hops." That might not sound that big, but it is a pretty big limitation when you dig into the math. Furthermore, he said that there should be a court reviewing each request to query the phone records database. He left open a pretty big loophole, saying that this judicial review could be skipped in a "true emergency," but it's still something.

In response, the Justice Department actually went to the FISA Court and filed a motion to revise the current order approving the telephone records collection (under Section 215 of the PATRIOT Act, sometimes called the "bulk metadata" program), to change it to put in place these restrictions. The FISA Court has now approved that request, and will release a (possibly redacted) version of the order within the next week and a half or so.

This is a small change, but it is still a meaningful change that creates both more oversight and greater limits on how this data can be used. It's a small step in the right direction.

Filed Under: bulk metadata, fisa, fisc, james clapper, nsa, phone records, section 215, surveillance, three hops, two hops

Congress Warns DOJ That If It Doesn't Support NSA Reform Plan, It Won't Renew Key Patriot Act Provision

from the get-your-act-together dept

While the USA Freedom Act isn't perfect, it is one bill in Congress that has a lot of support and will fix many problems with the current NSA overreach. Much more needs to be done, but the USA Freedom Act is a good starting point. And yet, the Obama administration and his Justice Department have yet to take a public stand on the bill, and that seems to be annoying plenty of folks in Congress. At the recent Judiciary Committee hearings, Rep. Jim Sensenbrenner, the original author of the Patriot Act and Section 215, made it abundantly clear that the DOJ/NSA's interpretation of his bill was simply incorrect and that they were abusing the system. As the sponsor of the USA Freedom Act to fix this misinterpretation, he pointed out that if the DOJ doesn't agree to support it, there's a good chance that Congress simply won't renew the provisions in Section 215 at all. Section 215, of course, is the part that has been misinterpreted by the DOJ, the FISA court, the NSA and the FBI to pretend it authorizes the collection of every phone record. In short, the message from Congress is: work with us to reform things, or we'll pull the authority altogether. Of course, some of us think that pulling the authority altogether might be a better long term solution.

And it's not just Sensenbrenner making those claims. Many others -- across the political spectrum -- made it clear during the hearing that the NSA's actions with regards to Section 215 were unacceptable and Congress is going to make them change things. Yes, nothing has happened yet, and Congressional bluster doesn't always lead to results, but it's becoming increasingly clear that the NSA (and the President's) desire to keep collecting everyone's metadata is not convincing anyone.

Filed Under: doj, house judiciary committee, jim sensenbrenner, nsa, reform, section 215, surveillance, usa freedom act

ODNI Tasks Researchers With Figuring Out How To Store Section 215 Collections Off-Site

from the still-looking-at-the-symptoms,-rather-than-the-sickness,-however dept

One of the few stipulations in Obama's NSA reforms was to transfer the Section 215 collections to a third party and out of the NSA's direct control. The assumption is that these records will be held by those generating them -- the telcos. But the telcos have made it apparent that, while they have no problem asking "how high" whenever the NSA says, "jump," they have no interest in storing the records onsite. The administration didn't specifically order anyone to take control of the records, basically punting the issue to Congress and the DOJ and "allowing" them to sort it out.

For better or worse, the ODNI has already taken action toward fulfilling the president's order.

The Office of the Director of National Intelligence has paid at least five research teams across the country to develop a system for high-volume, encrypted searches of electronic records kept outside the government's possession. The project is among several ideas that could allow the government to store Americans' phone records with phone companies or a third-party organization, but still search them as needed.

These researchers' suggestions will be weighed against anything the DOJ or Congress has to offer, albeit with a slight hometeam advantage. There are some protections the ODNI has specified that may make its conclusions preferable to others, in terms of data security at least, and possibly provide more flexibility for shifting records to whatever entity(ies) is left holding the metadata bag.

Under the research, U.S. data mining would be shielded by secret coding that could conceal identifying details from outsiders and even the owners of the targeted databases, according to documents obtained by The Associated Press and interviews with researchers, corporate executives and government officials…

An encrypted search system would permit the NSA to shift storage of phone records to either phone providers or a third party, and conduct secure searches remotely through their databases. The coding could shield both the extracted metadata and identities of those conducting the searches, Bellovin said. The government could use encrypted searches to ensure that its analysts were not leaking information or abusing anyone's privacy during their data searches. And the technique could also be used by the NSA to securely search out and retrieve Internet metadata, such as emails and other electronic records.

This would ease the logistics problem and (theoretically) reduce the possibility of abuse. But it doesn't eliminate every problem, including the "why" of collecting and storing millions of irrelevant phone records. While it will reduce the odds of abuse, it doesn't eliminate that prospect. Another concern is the fact that the use (as opposed to the collection and storage) of the data will still be removed from any meaningful oversight.

On a more positive note, the encrypted search requirement would stave off hacking attempts and prevent the phone companies from knowing which records have been searched. Of course, while preventing the phone companies from knowing what's going on with their records does some damage to the recently loosened restrictions on government access reporting, it does at least eliminate one of the telcos' objections to maintaining the collected data onsite. (Although it can be argued that the telcos -- Verizon and AT&T especially -- have been so compliant over the years that storing data onsite won't be remarkably different than storing it at NSA data centers.)

There are some pluses to the ODNI's efforts, but the question of why the collection is needed still hasn't been answered. The administration's cosmetic reforms placed a few restrictions on the Section 215 program but completely avoided addressing the overall uselessness of the Fourth Amendment-skirting program. As the program morphs to meet the few requirements given, the NSA's supporters are likely to greet each change with more proclamations of the damage being done to national security. (Not that they haven't started already…)

Ultimately, the NSA has no need to keep the data onsite, considering it will now have to seek court approval before searching the database. It will still have some leeway to bypass the judicial constraints thanks to National Security Letters, but for the most part, it's a return to its 2009 restraints as ordered by FISC judge Reggie Walton after observing "systemic abuse" of the bulk records collections. With this in place, the agency can't really argue that uninterrupted, direct access is needed as it will be something it no longer has, onsite or not. Placing another small hurdle simply makes it a bit more difficult to abuse the collection and, after having free rein for so many years, a little friction is exactly what the agency needs to experience.

Filed Under: bulk metadata, james clapper, nsa, odni, patriot act, privacy, section 215, surveillance

Almost Everything About The Bulk Collection Of Phone Data Is Illegal

from the a-simple-explanation dept

We already wrote about the Privacy and Civil Liberties Oversight Board (PCLOB) and its scathing report as to how the program to collect phone records on pretty much every phone call in the US was both illegal and unconstitutional. However, if you don't want to get too down in the weeds over why it's illegal, the absolutely best summary I've seen comes from Julian Sanchez and fits into a tweet:

215 allows FBI to get records relevant to an investigation. PCLOB: NSA program fails on "FBI", "records," "relevant" & "investigation."

— Julian Sanchez (@normative) January 23, 2014

In case you can't read that, it says:

215 allows FBI to get records relevant to an investigation. PCLOB: NSA program fails on "FBI", "records," "relevant" & "investigation."

Believe it or not, he's not even being that glib here. Section 215 is pretty clear on all of those things. It's just for the FBI, and allows them to get records relevant to a specific investigation. Yet, the program is run by the NSA, which collects the data, instead of the FBI. It is not collecting "records" as intended by the law, and most of those records are irrelevant, and none of this is tied to any particular investigation. I'm reminded of the joke that the Holy Roman Empire wasn't actually holy, Roman or an empire.

When the law includes four basic conditions, and basically all four of them are not met, the program is beyond illegal. It's just a farce. It's kind of amazing that President Obama and other NSA defenders are still arguing that the program is perfectly fine.

Filed Under: bulk metadata collection, business records, fbi, julian sanchez, nsa, pclob, section 215, surveillance

Intelligence Community Says President Obama's Non-Plan To 'End' Metadata Collection Is 'Impossible'

from the shockingly-unshocking dept

What do you get when the President of the United States, rather than take a stand and act as a leader, decides to try to "balance" everything by pretending to promise to end the Section 215 bulk metadata collection, while promising to "retain its capabilities"? And then, after announcing that non-plan, tossing it over to the Attorney General and Congress to sort out the details? Yeah, you get a whole lot of nothing. And, folks in the intelligence community are basically saying that nothing's going to change because what he's suggesting isn't really possible.

“The idea that this complicated problem will be solved in the next two months is very unlikely, if not impossible,” said one official with knowledge of the discussions. “It is not at all inconceivable that the bulk collection program will stay the same, with the records held by the government until 2015,” when the law that authorizes the bulk collection is set to expire.

And, of course, many assume this was the plan all along. Say that they're ending the program while promising to keep the capabilities, then punt the issue to others to work out, and you pretty much guarantee the status quo for quite some time. Perhaps permanently. This wasn't leadership, this was passing the buck. And that's why most of the intelligence community seems perfectly happy with the result.

Filed Under: barack obama, bulk collection, intelligence community, metadata, nsa, section 215, surveillance

Surprise: Republican Party Says NSA Surveillance Programs Are Unconstitutional And Must End

from the didn't-see-that-coming dept

As we've noted many times in the past, unlike most sites that cover politicians, we have a policy in which we don't name the party of a politician unless that point is key to the story. We've found that this leads to a more intellectually fulfilling discussion, where people focus more on the ideas and statements, rather than reverting automatically to stereotypes, pro or con, about a particular political party. However, there are times when the party affiliation is a key part of the story, and this is clearly one of those: the Republican National Committee, basically the party's leadership, has passed a resolution condemning the NSA's bulk collection of phone records and explicitly declaring the program a violation of the 4th Amendment. This is somewhat surprising on multiple levels, not the least of which is that the Republican party, historically, has tended to be much more supportive of the surveillance state. And yet, during the RNC's meeting, not a single member spoke against the following resolution, which then passed with an "overwhelming majority" during the voice vote:

Resolution to Renounce the National Security Agency’s Surveillance Program

WHEREAS, the secret surveillance program called PRISM targets, among other things, the surveillance of U.S. citizens on a vast scale and monitors searching habits of virtually every American on the internet;

WHEREAS, this dragnet program is, as far as we know, the largest surveillance effort ever launched by a democratic government against its own citizens, consisting of the mass acquisition of Americans’ call details encompassing all wireless and landline subscribers of the country’s three largest phone companies;

WHEREAS, every time an American citizen makes a phone call, the NSA gets a record of the location, the number called, the time of the call and the length of the conversation, all of which are an invasion into the personal lives of American citizens that violates the right of free speech and association afforded by the First Amendment of the United States Constitution;

WHEREAS, the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution, which guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, that warrants shall issue only upon probable cause, and generally prevents the American government from issuing modern-day writs of assistance;

WHEREAS, unwarranted government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society and this program represents a gross infringement of the freedom of association and the right to privacy and goes far beyond even the permissive limits set by the Patriot Act; and

WHEREAS, Republican House Representative Jim Sensenbrenner, an author of the Patriot Act and Chairman of the House Judiciary Committee at the time of Section 215′s passage, called the Section 215 surveillance program “an abuse of that law,” writing that, “based on the scope of the released order, both the administration and the FISA (Foreign Intelligence Surveillance Act) court are relying on an unbounded interpretation of the act that Congress never intended,” therefore be it

RESOLVED, the Republican National Committee encourages Republican lawmakers to enact legislation to amend Section 215 of the USA Patriot Act, the state secrets privilege, and the FISA Amendments Act to make it clear that blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court;

RESOLVED, the Republican National Committee encourages Republican lawmakers to call for a special committee to investigate, report, and reveal to the public the extent of this domestic spying and the committee should create specific recommendations for legal and regulatory reform ot end unconstitutional surveillance as well as hold accountable those public officials who are found to be responsible for this unconstitutional surveillance; and

RESOLVED, the Republican National Committee encourages Republican lawmakers to immediately take action to halt current unconstitutional surveillance programs and provide a full public accounting of the NSA’s date collection programs.

Note that they're not just talking about the Section 215 bulk collection program, but also name PRISM -- which is under Section 702 of the FISA Amendments Act -- as being problematic (though, most of the resolution does focus on the Section 215 program).

We had mentioned, just recently, that it appeared strictly partisan folks had a tendency to flip positions on surveillance based on whether or not "their guy" was in power, so to some extent this can be seen as a pushback on the fact that there's a Democratic President -- but this is still a huge shift for this to basically be the position of the entire Republican Party. No longer can people claim that it's just the "fringe element" that is arguing for these things or the outlier "libertarian wing."

Filed Under: 4th amendment, nsa, republican national committee, republicans, section 215

FISA Court Waited Until After Snowden Leaks To Actually Explore If Bulk Phone Record Collection Was Legal

from the well-look-at-that dept

One of the most common defenses of the NSA's bulk phone record collection (in which they get access to the record of basically every phone call in the US) is that the program has been reviewed and reapproved by the FISA Court every few months. Especially after the ruling by Judge Richard Leon calling the program unconstitutional, defenders of the program kept insisting that "every other judge" who reviewed the program had found it legal, with basically all of those other judges being the FISA court. Just yesterday, for example, Attorney General Eric Holder claimed that "at least 15 judges on about 35 occasions have said that the program itself is legal."

Except... that's not actually true. We already wrote about yesterday's release of the PCLOB's scathing report on how the program was both illegal and unconstitutional, but wanted to highlight one key point from early in the report, in which the PCLOB notes that the FISC never even bothered to look at whether or not the program was really legal until after it hit the press when Snowden leaked the details to Glenn Greenwald and Laura Poitras.

The Section 215 telephone records program has its roots in counterterrorism efforts that originated in the immediate aftermath of the September 11 attacks. The NSA began collecting telephone metadata in bulk as one part of what became known as the President’s Surveillance Program. From late 2001 through early 2006, the NSA collected bulk telephony metadata based upon presidential authorizations issued every thirty to forty-five days. In May 2006, the FISC first granted an application by the government to conduct the telephone records program under Section 215. The government’s application relied heavily on the reasoning of a 2004 FISA court opinion and order approving the bulk collection of Internet metadata under a different provision of FISA.

On June 5, 2013, the British newspaper The Guardian published an article based on unauthorized disclosures of classified documents by Edward Snowden, a contractor for the NSA, which revealed the telephone records program to the public. On August 29, 2013, FISC Judge Claire Eagan issued an opinion explaining the court’s rationale for approving the Section 215 telephone records program. Although prior authorizations of the program had been accompanied by detailed orders outlining applicable rules and minimization procedures, this was the first judicial opinion explaining the FISA court’s legal reasoning in authorizing the bulk records collection. The Section 215 program was reauthorized most recently by the FISC on January 3, 2014.

We had noted earlier this week that the NSA had relied heavily on that 2004 opinion by Judge Colleen Kollar-Kotelly, which was not about the Section 215 program, but rather a different program to collect internet metadata (since discontinued). What many had suspected, but was not clearly stated until now, was that the FISA Court didn't actually bother to do any real analysis of the phone bulk collection data program until after it became public.

It was pretty clear when Judge Eagan's ruling was released in September, that it was written for a post-Snowden world, in which the FISC actually had to explain its bizarre contortionist explanation for how collecting every phone record could possibly be legal or Constitutional. But what wasn't quite known was that this was the first time a FISC judge had ever really bothered to look closely at the issue -- seven years after starting to reapprove the program, with no analysis at all, every three months.

So this idea that the program was approved by 15 judges on 35 occasions is not even close to accurate. What seems clear is that FISC judges more or less let this issue slide for seven years, assuming (based on nothing) that because of Judge Kollar-Kotelly's (already immensely troubling) ruling concerning internet metadata, involving a different authority, that the bulk phone records collection must also be legal under Section 215. It was only over the summer that Judge Eagan was given the unenviable task of trying to come up with an opinion to justify all of that in retrospect, which explains why the reasoning in the opinion was so laughable and easily poked full of holes by nearly everyone who looked at it -- including those more inclined to support the program.

Either way, it's fairly shocking that FISC basically didn't bother to explore the legal issue at all until called on it. It also shows (1) why what Snowden did was so important and (2) why having an adversarial process in place is also important.

Filed Under: claire eagan, colleen kollar-kotelly, eric holder, fisa court, fisc, legal justification, pclob, section 215