Even A FISA Court Judge Basically Called The NSA's Bulk Record Collections 'Illegal'

from the the-casual-abandonment-of-the-4th-Amendment dept

The legality of the NSA’s bulk records programs is finally being questioned by a federal judge. Judge Richard Leon of the DC circuit court, presiding over a lawsuit brought by Larry Klayman against the government, had this to say in December about the NSA’s Section 215 collections.

The Court finds that it does… have the authority to evaluate plaintiffs’ constitutional challenges to the NSA’s conduct, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court (“FISC”). And after careful consideration of the parties’ pleadings and supplemental pleadings, the representations made on the record at the November 18, 2013 hearings regarding these motions, and the applicable law, the Court concludes that plaintiffs have standing to challenge the constitutionality of the Government’s bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.

Leon refused to buy into the government’s tortured rhetoric, questioning its insistence that the number of Americans affected was limited by specifically pointing out its practice of “contact chaining,” which allows it to access millions of stored metadata records wholly unrelated to its investigatons. (This contrasts heavily with another federal judge’s opinion, which went the other way and trotted out the NSA’s talking points and nonexistent sections of the 9/11 Commission’s report in support of the decision.)

But these aren’t the only two judges to weigh in on the constitutionality of the program. FISC judge Reggie Walton stated the following in his 2009 court order, after detailing the agency’s extensive abuse of the metadata collection over the previous three years.

In light of the foregoing, the Court returns to fundamental principles underlying its authorizations. In order to compel the production of tangible things to the government, the Court must find that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a US. person is not conducted solely on the basis of activities protected by the First Amendment. 50 U.S.C. 1861.

The government’s applications have all acknowledged that, of the [xxxxx] of call detail records NSA receives per day (currently over [xxxxxxx] per day), the vast majority of individual records that are being sought pertain neither to [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]. 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. Ordinarily, this alone would provide sufficient grounds for a judge to deny the application.

Now, while Walton’s order detailed a great magnitude of NSA abuse, what he states here questions the legality of the program’s very existence. Even with the restrictions placed on accessing the collected metadata, the underlying concept is flawed. As Walton states, “nearly all” US citizens’ call records obtained are those of citizens who are not subjects of NSA or FBI investigations and are not being used as part of the NSA’s counterterrorism efforts.

Walton says that this data is only being collected “legally” thanks to the permission of the FISA court, which had just spent three years being undermined by the NSA’s lies and misrepresentations. Without the FISA court’s intervention and the agency’s ability to abide by the court’s rulings, the NSA’s collection would be illegal.

Walton’s recognition of the fact that nearly all data being collected is irrelevant puts him on the same page as Judge Leon: bulk, untargeted collection of irrelevant metadata is not constitutional.

After stating that fewer than 300 unique identifiers met the RAS standard and were used as “seeds” to query the metadata in 2012, Ms. Shea notes that “[b]ecause the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three ‘hops’ from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but is still a very small percentage of the total volume of metadata records…”

[I]t belabors the obvious to note that even a few million phone numbers is “a very small percentage of the total volume of metadata records” if the Government has collected metadata records on hundreds of millions of phone numbers.

The NSA relies on an old ruling governing pen registers that was given an expansive re-reading by FISC judge Colleen Kollar-Kotelly. This mutation of the pen register law has allowed to the NSA to use the low privacy bar set by the surveillance method while retaining none of its limitations. The pen register allows for a great deal of information gathering. The check against its abuse was supposed to be that it had to be targeted. Government and law enforcement agencies needed to have a person of interest in order to have the pen register approved. It was limited both in time and scope. That’s no longer the case.

That Section 215 isn’t Constitutional isn’t a surprise, but it will take a lot to overturn the reliance on decades-old laws that no longer pertain to the technology in use and the realities of the NSA’s ongoing bulk records collections. As Leon stated in his decision, technological advances have made the NSA’s job easier but the expectation of privacy is still there, no matter how the courts (FISC, federal) have interpreted existing laws.

It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.

Walton saw the same problems, which were made worse by the NSA’s “systemic abuse” of the collections. He shut it down and forced the NSA to route its access requests through the court on a case-by-case basis. That’s no longer happening, which means the agency has returned to rubber-stamped court orders demanding telcos turn over every call record on a rolling 90-day basis. A return to the court controlling access to the database would at least force the agency to refine its searches and provide evidence that what it seeks is actually relevant to ongoing investigations, rather than just claiming all records are “relevant” because, well, anything’s possible.

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Comments on “Even A FISA Court Judge Basically Called The NSA's Bulk Record Collections 'Illegal'”

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uRspqF7L (profile) says:


Just as a point of order, but it’s an important one, I think.

In your title, you put “illegal” in quotation marks, as if it appears in the judge’s ruling. But it doesn’t appear in the quotations you provide, and my memory is that it doesn’t appear in Judge Leon’s ruling–in fact, that he refuses to hear the question of legality.

The word both judges use is “constitutional.” As you say yourself, now referring to Judge Walton’s decision, “Without the FISA court’s intervention and the agency’s ability to abide by the court’s rulings, the NSA’s collection would be illegal.”

The fact that the FISA court does appear to have authorized these collection programs under 215 makes them ipso facto *legal*.

If the NSA has lied to the FISA court about the programs, it may well have violated 215 or other laws, though that’s not clear and would depend on specific 215 provisions. It may have violated laws about providing true evidence to the Court. But those aren’t the charges described here.

I am splitting these hairs because it’s an important issue: most of the time, what are declared “unconstitutional” are *laws*. (not always; sometimes particular practices get declared unconstitutional, but mostly it is laws).

My general impression is that, especially given the FISA court approvals, much of what the NSA and other intelligence agencies do is *legal* under the Patriot Act and other US laws. There are exceptions, but Greenwald et al use the word “illegal” quite indiscriminately. The Patriot Act is bad law, but following it is legal, not illegal.

That doesn’t mean the Patriot Act is Constitutional. I don’t think it is. But until ruled on by the Supreme Court, under US law, that remains a matter of opinion. Further, were the Patriot Act to be ruled unconstitutional, that would still not make NSA actions retroactively illegal, except in a very extended sense.

Most of the time, it is *legal* actions that get declared unconstitutional. Once they are, the govt can’t do them anymore, but that does not give anyone the right to retroactively charge those who were following bad law with doing something illegal. They weren’t they were following bad law.

Most of the time, illegal != unconstitutional, and if we are talking about actual law, the two are close to mutually exclusive.

John Fenderson (profile) says:

Re: "illegal"?

I’ve been trying to formulate these exact thoughts into words. You did it very well, thanks!

I think much of the issue is just an imprecision in language. Many words, including “legal” and “illegal” mean different things in popular usage vs legal usage.

Technically, yes, there are many things that are legal but unconstitutional. However, in popular usage, this is an impossibility — if something is unconstitutional, it cannot be legal regardless of what courts currently think.

I think that often, when people say “legal” or “illegal,” what they really mean is “lawful” or “unlawful.” A subtle difference that can be important to pedants like us. 🙂

Quiet Lurcker says:

Re: "illegal"?

Your comments strike me as a polemic in favor of the NSA.

Couple points to think about before carrying your apologion any further.

1. The Patriot Act is, on the face of it, unconstitutional in its entirety. Therefore, any act taken under the authority of the Patriot Act is, automatically unconstitutional, therefore illegal/unlawful (there is a narrow difference, which I’ll leave to the sophists among us). And it matters not a whit whether some court sanctioned the acts in question.

2. The lawyers who represented the NSA to the FISC court had a legal and a moral duty to be honest to the court. If this had been a regular court, supervising a criminal investigation, and the court had found out the prosecutor had lied, the entire case would be in jeopardy – the fruit of the poisoned tree I believe they call it. If there is a difference in standard of conduct between any lawyer in a court and a government lawyer, the government lawyer should be held to a HIGHER standard of conduct.

uRspqF7L (profile) says:

Re: Re: "illegal"?

“illegal” has a very plain meaning: it means in violation of a law (NOT the Constitution).

I am not defending the NSA in any way. I believe the programs are unconstitutional, which is more serious than “illegal” for many reasons.

But for something to be “illegal,” it must be in violation of a law. If it is actually following a law, it is by definition “legal.”

This has real consequences. For someone to be charged or prosecuted in court, there must be a law they have violated.

Further, Judge Leon specifically addressed the legality question and dismissed it. He embraced the constitutional question. So do I.

But the mechanisms, regulations, and procedures regarding something being unconstitutional are different from those for something being illegal.

I will ask you in the most direct way: illegal means “in violation of the law.” Which US law has been violated in your estimation? Which US laws do Judge Leon or Judge Walters say has been violated?

Anonymous Coward says:

Re: Re: Re: "illegal"?

“illegal” has a very plain meaning: it means in violation of a law (NOT the Constitution).

I see your argument. However, is the Constitution not considered a collection of federal laws? The way I see it you have one law (the Patriot Act) that stands in contradiction to another law (the 4th amendment) which the courts repeatedly have determined to be a situation that can not be allowed to continue to exist. If we apply your definitions of legal and illegal to this it is both. It is legal in that its authorized by one law and illegal in that it is prohibited by another.

Anonymous Coward says:

Re: Re: Re:3 "illegal"?

Now I will grant that most of the language of the Constitution is written in broad terms allowing it to be interpreted. Take for example the 18th amendent. It was a federal law prohibiting “the manufacture, sale, or transportation of intoxicating liquors” in the US. It was then overturned when Congress passed another amendment (ie. law) that repealed it but it was still a law.

John Fenderson (profile) says:

Re: Re: Re:4 "illegal"?

Actually, it wasn’t a law. It did require that laws be created to effect the result it called for, but it, in itself wasn’t a law. The actual law that enforced prohibition was the Volstead Act, not the Constitution.

Admittedly, in this case it seems like hair-splitting, but that’s a side-effect of the fact that the 18th amendment was a freaky thing in the first place. Every other part of the Constitution defines what government can or cannot do. This one was strange in that it defined what citizens cannot do. For that reason alone, it was a terrible amendment.

Anonymous Coward says:

Re: Re: Re:5 "illegal"?

And the Volstead Act was necessary because the 18th amendment didn’t have any penalties specified. The reason you have to be careful about putting penalties in the Constitution is that if you decide you want to raise or lower them they are too hard to change. The difficulty in changing it is also why the prohibitionists pushed for an amendment in the first place – to purposely make it hard to abolish altogether. Otherwise they could have simply have pushed for the Volstead Act on it’s own. That doesn’t change the fact that they are still laws. It’s just because of the difficulty in changing them when the need arises, we have for the most part been very careful what we codify into the actual Constitution itself.

John Fenderson (profile) says:

Re: Re: Re:6 "illegal"?

To bring this back around, because I’ve allowed myself to be sidetracked here (sorry!) my assertion was that the Constitution is not Federal law. My brief persual of Constitutional law theory backs this up.

It is more like Primary Law — it is what that makes it possible to have government and law. Federal law is made possible by the Constitution, but is not itself federal law.

Anonymous Coward says:

Re: Re: Re:7 "illegal"?

That’s an interesting interpretation of the Constitution however, while I agree that the Constitution does do all those things as well, I think the fact that specifics prohibitions an penalties rarely occur in it because the fact that it is so difficult to change. Those sorts of specifics COULD be added directly to the Constitution but it would be very foolish to do so.

uRspqF7L (profile) says:

Re: Re: "illegal"?

to respond to your individual points:

1) no, following an unconstitutional law is 100% legal under the ordinary definitions of these terms. It matters a great deal, in court, which it is and Judge Leon’s opinion itself makes this very clear. It’s not sophistry: everything about what eventually happens in this case will depend on it. I agree with you that the Patriot Act is unconstitutional, though “on its face” is suggesting there is a fact of the matter about that, and there isn’t, or otherwise Congress would not have approved it and all judges would agree (and we already know they don’t).

2. This is just plain wrong. 215 specifically forces the NSA to approach the FISA court for authorization. Granting that authorization provides the NSA with the legal authority to do what is authorized. Whether or not they are or should be held to a “higher standard of conduct” on a moral level, that court approval provides “on its face” evidence of legality, not illegality: it is literally what the law demands. Further, Judge Leon entertained and rejected the claim that 215 had been violated. That doesn’t mean someone else won’t make the claim successfully, but I find it much weaker than the Constitutional claim and highly unlikely to produce anything like the same wide-ranging reforms or elimination of program.

This is all going to court. This story is about court. Getting legal language correct in court is not sophistry. It is a requirement.

Quiet Lurcker says:

Re: Re: Re: "illegal"?

A court ruled the gathering of meta-data to be in compliance with a law. That law is, was, and always will be unconstitutional, irrespective of the fact that no court until just recently has ruled it so. Any acts done by the government under the aegis of the unconstitutional law are themselves unconstitutional.

The Constitution is the bedrock on which all other laws (are supposed to) rest. If an act is unconstitutional, it’s wrong, irrespective of whether there is a law allowing, commanding, or authorizing the act in question.

And yes, it is illegal, as well. If memory serves, Congress passed a resolution to abide by the constitution in all things. They’ve ignored the very rules they’ve agreed to live by.

Anonymous Coward says:

isn’t Leon’s judgement being appealed by the NSA though? no surprise but if the NSA gets it’s way, which i would say it is almost guaranteed to do, there will be no other chance for contesting what has been, is or will be happening. it will basically be the end of democracy and the constitution in the USA and a big step closer to it being a ‘Police State’! those who are doing whatever they can to ensure this is what happens will be the first to complain and decry when they are actually subjected to the rules and laws (or lack of, as the case may be) themselves.

Anonymous Coward says:

@John Fenderson

While I definitely agree that imprecision can be a huge problem or even a flat out barrier to justice where law is concerned in the final word… but a better point is that it “essentially” okay to state that anything that is unconstitutional is illegal, while it is not okay to state that anything illegal is unconstitutional.

Yes, mass data collection by the government is illegal. The constitution is the grantor of Power or in short LAW for the government not the people specifically… people keep forgetting that point. The constitution does not protect us… WE DO!

If you want to make the point that a government exercising power it does not have is not actually illegal, then you have devolved into a minutial morass that provides for no except except to just walk away from the crazy.

uRspqF7L (profile) says:

Re: Re:

While I completely agree with John Fenderson’s point, that makes it all the more important to be precise. Greenwald is not always precise about this, and he is a lawyer, which makes it worse.

Accusing the US Government of doing something illegal is a very serious charge. If it is, you should be able to specifically state which law has been allegedly violated.

I understand that in common discussions people sometimes use “illegal” and “unconstitutional” as synonyms, but they are different in very important ways. The Constitution is not law, it is something much more fundamental.

Furthermore, this piece is specifically about what a judge said, and one of the two judges quoted here specifically rejected the claim that the programs were illegal, while accepting the claim that they are unconstitutional.

I want the attack on the NSA programs to be credible so that we get them reformed or eliminated in the proper way. I don’t think making very serious allegations that don’t have facts to back them up, and mis-stating what judges say helps that at all.

Among other things, the penalties for doing something “illegal” are typically very different from those for doing something “unconstitutional.” If NSA is in violation of Section 215, those specific actions might be declared illegal, while allowing NSA to go about its business. On the other hand, if Section 215 is declared unconstitutional, the whole program may be shut down. That is a highly preferable outcome in my opinion.

Anonymous Coward says:

Re: Re: Re:4 Re:

By his definition something is only illegal if it violates a law. When a court hears a case and determines that a search that was made by law enforcement was an “illegal” search because it violated the 4th amendment they in effect are saying that the search was illegal because it violated a law. Therefore the 4th amendment has to be considered a law under that definition.

Anonymous Coward says:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.” — Article 6

This Constitution and [other things]… shall be the supreme law of the land.

The constitution is law.

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