Supreme Court's Warrant Requirement For Cell Site Location Info Apparently Killed Another Domestic Surveillance Program
from the i,-for-one,-welcome-a-Supreme-Court-killing-spree dept
Oh, guess what? The NSA has ended another third party data collection — one it hopefully ended right after the Supreme Court’s Carpenter decision was released. Spencer Ackerman fills in the details at the Daily Beast.
U.S. intelligence agencies have stopped collecting cell-phone location data without a warrant on people inside the United States, the office of the director of national intelligence has affirmed.
Sounds good. Sounds like the NSA probably doesn’t have a legal way to continue this warrantless collection now that the Supreme Court has ruled historical cell site location info is covered by the Fourth Amendment. It’s been nearly 18 months since this decision was released. The letter sent to Ron Wyden by the ODNI indicates the Intelligence Community abandoned its harvesting of CSLI shortly after that ruling.
But, as Ron Wyden points out, the ODNI isn’t willing to state publicly that the Supreme Court’s decision was a contributing factor to its mothballing of the CSLI collection.
“The Intelligence Community has now publicly revealed that, since the Supreme Court decision more than a year ago, it hasn’t used Section 215 of the PATRIOT Act to track Americans,” Wyden said in a statement provided to The Daily Beast. “At the same time, the government is hedging its bets by not formally acknowledging that the Supreme Court case applies to intelligence surveillance…”
This is another of the NSA’s Section 215 collections. The most famous collection under Section 215 was the one exposed by the first Snowden leak: phone call metadata. This collection was retooled by the USA Freedom Act, which forced the IC to approach telcos with targeted orders supported by reasonable suspicion. The NSA was apparently so used to just collecting it all, it couldn’t manage to find a way to obtain this data without violating the law. It was abandoned and the NSA recommended to have it shut down forever. The FBI doesn’t like that idea, though, and wants Congress to give the phone metadata collection — along with everything else harvested under Section 215 — a permanent reauthorization.
At least that’s not going to happen. It looks like the phone metadata collection will now become the only thing that’s truly forever: dead.
A forthcoming bill from the House judiciary and intelligence committees will reauthorize three other surveillance measures set to expire, but will not permit the Call Detail Records program to survive. With expiration set for Dec. 15, whatever the Senate does the Call Detail Records program, barring some eleventh-hour legislative chicanery, looks like the rarest of birds: a post-9/11 surveillance activity on course for extinction.
You can draw a straight line from the Snowden leaks to the death of this collection. The Patriot Act gave the NSA a handy way to spy on Americans. 14 years later, the USA Freedom Act scaled back that power, altering the program enough that the NSA couldn’t seem to find a way to collect these records without violating the law. Five years after this minor surveillance reform effort, the program will be put out of its misery.
But the NSA has plenty of other collection authorities that will remain unchanged and mostly unexamined. Even this Section 215 collection — which seemingly violates Supreme Court precedent — hasn’t received much public discussion. It seems clear warrantless collection of cell site location info is now illegal, but until more details head Wyden’s way, we probably should assume the Office of Legal Counsel is trying to assemble a rationale that allows the Intelligence Community to route around the Carpenter roadblock.
But, if nothing else, the phone metadata collection is dead. Forever. And that’s worth celebrating.