On Second Thought: Why Was Verizon's Challenge To Bulk Phone Records Collection So Weak?
from the you-can-do-better-than-that dept
On Friday we wrote about an unnamed phone company apparently challenging the FISA Court’s order to hand over certain phone records on basically every phone call, noting that the FISA Court shot down that challenge. The phone company was not identified, but the Washington Post says that people have confirmed that it’s Verizon. That isn’t all that surprising. As far as we know, the Section 215 bulk phone record orders are mainly used on Verizon and AT&T, but not other, smaller phone companies.
In our post, we suggested the nameless telco deserved kudos for actually challenging the order, but in retrospect, the company only deserves very partial kudos. First, assuming it’s Verizon, the company has been receiving these orders every three months for something close to eight years. And it just challenged them now? Second, the challenged relied entirely on Judge Richard Leon’s ruling from December that found the Section 215 program unconstitutional. Verizon did not make any specific statutory or constitutional challenges itself to the order. It just pointed to Judge Leon’s ruling and said that, based on that ruling, it was questioning the order. In fact, it’s not even clear if Verizon was actively challenging the order, or just asking for clarification based on Judge Leon’s ruling.
That’s a fairly weak challenge, and allowed FISC judge Rosemary Collyer to just handwave away Judge Leon’s arguments, without Verizon having to present any real arguments itself. It’s a challenge, certainly, but a rather weak one that Verizon had to know it would lose, and which didn’t require much effort at all.