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

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:// 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.

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

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grey pupon is my orange juice says:

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.

tqk (profile) says:

Re: Re: As a public service ...

I just envisioned FISA and the USA Freedom Act yiffing together.


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.

mcinsand (profile) says:

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.

mcinsand (profile) says:

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.

Anonymous Coward says:

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.

Ninja (profile) says:

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.

Anonymous Coward says:

Re: 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.

zippy says:

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.

tqk (profile) says:

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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