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
“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.