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FISA Court Rubber Stamps Continued Collection Of All Phone Records, While DOJ Insists No One Can Challenge This

from the well-isn't-that-great dept

As of this morning, the Feds didn't want to say if they'd asked the FISA court to renew the order allowing it to collect the data on every single phone call from Verizon (and likely every other major phone carrier, though it's unclear if the orders for those others also expired today). However, as more and more people raised the question, the office of the Director of National Intelligence apparently recognized that they couldn't avoid answering the question forever, and admitted what everyone already knew: yes, it had asked for a renewal of the order and yes (of course) the rubber stamp FISA court had rubber stamped its approval:
Consistent with his prior declassification decision and in light of the significant and continuing public interest in the telephony metadata collection program, the DNI has decided to declassify and disclose publicly that the Government filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the Court renewed that authority.

The Administration is undertaking a careful and thorough review of whether and to what extent additional information or documents pertaining to this program may be declassified, consistent with the protection of national security.
It may be undertaking that internal review, but one thing that it does not want is to have to defend the whole shebang in court. Because the DOJ has now filed its response to the ACLU's lawsuit over the very same program (one of many such lawsuits, but one of the most high profile ones). The DOJ is asking for the case to be thrown out, of course. There are a bunch of reasons suggested, including arguing that the ACLU doesn't have standing. That's quite an argument, because the leaked order makes it clear that all customers of Verizon business services have had their data collected, and the ACLU just happens to be a customer. However, the DOJ argues "nuh uh," saying it doesn't actually count until someone in the government looks at the data it collected, and the ACLU has no proof that the government actually looked at the data.
Plaintiffs cannot meet this essential requirement, even assuming their metadata have been or will be collected, because it is no more than speculation that their metadata have been or ever will be among the very small percentage of the records in the database that are ever reviewed. They neither allege nor point to any basis on which to conclude that any identifier of theirs is among the small number authorized for queries under the RAS standard. See Complaint, IN 25-27. Indeed, the chances that their metadata will be used or reviewed in a query are so speculative that they lack Article III standing to seek the injunctive relief requested in their July 2 letter.
In other words, because the feds only look at a few records, they can collect them all. That's the theory they've been working under for a while, but that would require you to believe that there is no "search and seizure" of information that the government collects until it actually does something with that data. While the FISA court may agree with that, it's not at all clear that a real federal court -- or even the Supreme Court -- would do so too.

Next, the DOJ argues that since this data is collected under &sec;215 it's clearly legal, end of story. Furthermore, they claim that collecting all the data (all of it!) meets the standard of "relevant" to an investigation, as required by the statute -- though, as others have described, much of this requires a handy-dandy redefining of the word "relevant." Don't you just love the malleability of the English language?
The large volume of telephony metadata is relevant to FBI investigations into specific foreign terrorist organizations because to identify potential terrorist communications under this court-imposed query standard requires collecting and storing a large volume and high percentage of information about unrelated communications, to ensure that the much smaller subset of terrorist-related telephony metadata records are contained within the dataset. These data allow the Government to make connections related to terrorist activities over time and can assist counter-terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, including persons and activities inside the United States. If not collected and held by the Government, the metadata may not remain available for the period necessary for these national security purposes, because it need not be retained for that period by telecommunications service providers. Moreover, unless the data are aggregated, it may not be possible to identify telephony metadata records that cross different telecommunications networks. In short, because the telephony metadata must be available in bulk to allow the Government to identify the records of terrorist communications, there are "reasonable grounds to believe" that the data are relevant to authorized investigations to protect against international terrorism, as Section 215 requires, even though most of the records in the database are not associated with terrorist activity.
Basically, "all your data belong to us" because some of it might be relevant to some investigation at some undefined point. If that's the rule, then the government can collect anything and everything.

The DOJ also pulls out the expected Smith v. Maryland "third party doctrine" claim to say that the collection of the data from phone companies is legal because there's no expectation of privacy in the metadata about your calls held by a third party. We've pointed out multiple times how that stretches the interpretation of that case, perhaps well past the breaking point.

Either way, combine these two stories, and what you get is that, yes, the feds are still collecting every bit of data on every call you make... and there's no legal way you can challenge it because you don't have standing and it's all legal -- but not so legal that we're comfortable with it being tested in court. Doesn't that seem wrong?

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  1. This comment has been flagged by the community. Click here to show it
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    Anonymous Coward, 19 Jul 2013 @ 6:49pm

    but that would require you to believe that there is no "search and seizure" of information that the government collects until it actually does something with that data.

    that's true, just like a police officer can sit behind a sign on the highway, and surveillance all the cars going past, and only do something about the ones clearly breaking the law (like speeding).

    or to check peoples 'history' as they try to get on a flight, but only 'do something' if the information they gathered warrants further investigation.

    The courts have agreed to this, it is routine all over the world, including the US.

    You arguments against it, seem very, very weak, and it is clear the courts do not agree with your assumption.

    You 'guess' that other courts might not agree with it, is at best a stretch. Your predictions of court decisions is not a good one.

    You do not display a good record of legal knowledge or how a judge or jury will rule. This is yet another example of this deficiency of yours.

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