Even A FISA Court Judge Basically Called The NSA's Bulk Record Collections 'Illegal'

Legal Issues

from the the-casual-abandonment-of-the-4th-Amendment dept

The legality of the NSA’s bulk records programs is finally being questioned by a federal judge. Judge Richard Leon of the DC circuit court, presiding over a lawsuit brought by Larry Klayman against the government, had this to say in December about the NSA’s Section 215 collections.

The Court finds that it does… have the authority to evaluate plaintiffs’ constitutional challenges to the NSA’s conduct, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court (“FISC”). And after careful consideration of the parties’ pleadings and supplemental pleadings, the representations made on the record at the November 18, 2013 hearings regarding these motions, and the applicable law, the Court concludes that plaintiffs have standing to challenge the constitutionality of the Government’s bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.

Leon refused to buy into the government’s tortured rhetoric, questioning its insistence that the number of Americans affected was limited by specifically pointing out its practice of “contact chaining,” which allows it to access millions of stored metadata records wholly unrelated to its investigatons. (This contrasts heavily with another federal judge’s opinion, which went the other way and trotted out the NSA’s talking points and nonexistent sections of the 9/11 Commission’s report in support of the decision.)

But these aren’t the only two judges to weigh in on the constitutionality of the program. FISC judge Reggie Walton stated the following in his 2009 court order, after detailing the agency’s extensive abuse of the metadata collection over the previous three years.

In light of the foregoing, the Court returns to fundamental principles underlying its authorizations. In order to compel the production of tangible things to the government, the Court must find that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a US. person is not conducted solely on the basis of activities protected by the First Amendment. 50 U.S.C. 1861.

The government’s applications have all acknowledged that, of the [xxxxx] of call detail records NSA receives per day (currently over [xxxxxxx] per day), the vast majority of individual records that are being sought pertain neither to [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]. In other words, nearly all of the call detail records collected pertain to communications of non-U.S. persons who are not the subject of an FBI investigation to obtain foreign intelligence information, are communications of US. persons who are not the subject of an FBI investigation to protect against international terrorism or clandestine intelligence activities, and are data that otherwise could not be legally captured in bulk by the government. Ordinarily, this alone would provide sufficient grounds for a judge to deny the application.

Now, while Walton’s order detailed a great magnitude of NSA abuse, what he states here questions the legality of the program’s very existence. Even with the restrictions placed on accessing the collected metadata, the underlying concept is flawed. As Walton states, “nearly all” US citizens’ call records obtained are those of citizens who are not subjects of NSA or FBI investigations and are not being used as part of the NSA’s counterterrorism efforts.

Walton says that this data is only being collected “legally” thanks to the permission of the FISA court, which had just spent three years being undermined by the NSA’s lies and misrepresentations. Without the FISA court’s intervention and the agency’s ability to abide by the court’s rulings, the NSA’s collection would be illegal.

Walton’s recognition of the fact that nearly all data being collected is irrelevant puts him on the same page as Judge Leon: bulk, untargeted collection of irrelevant metadata is not constitutional.

After stating that fewer than 300 unique identifiers met the RAS standard and were used as “seeds” to query the metadata in 2012, Ms. Shea notes that “[b]ecause the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three ‘hops’ from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but is still a very small percentage of the total volume of metadata records…”

[I]t belabors the obvious to note that even a few million phone numbers is “a very small percentage of the total volume of metadata records” if the Government has collected metadata records on hundreds of millions of phone numbers.

The NSA relies on an old ruling governing pen registers that was given an expansive re-reading by FISC judge Colleen Kollar-Kotelly. This mutation of the pen register law has allowed to the NSA to use the low privacy bar set by the surveillance method while retaining none of its limitations. The pen register allows for a great deal of information gathering. The check against its abuse was supposed to be that it had to be targeted. Government and law enforcement agencies needed to have a person of interest in order to have the pen register approved. It was limited both in time and scope. That’s no longer the case.

That Section 215 isn’t Constitutional isn’t a surprise, but it will take a lot to overturn the reliance on decades-old laws that no longer pertain to the technology in use and the realities of the NSA’s ongoing bulk records collections. As Leon stated in his decision, technological advances have made the NSA’s job easier but the expectation of privacy is still there, no matter how the courts (FISC, federal) have interpreted existing laws.

It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.

Walton saw the same problems, which were made worse by the NSA’s “systemic abuse” of the collections. He shut it down and forced the NSA to route its access requests through the court on a case-by-case basis. That’s no longer happening, which means the agency has returned to rubber-stamped court orders demanding telcos turn over every call record on a rolling 90-day basis. A return to the court controlling access to the database would at least force the agency to refine its searches and provide evidence that what it seeks is actually relevant to ongoing investigations, rather than just claiming all records are “relevant” because, well, anything’s possible.

Filed Under: bulk metadata collection, fisa court, fisc, patriot act, reggie walton, section 215