New FISC Memorandum Says Bulk Metadata Program Still Good To Go Until Congress Or Supreme Court Says Otherwise

from the we-still-have-the-greatest-enthusiasm-and-confidence-in-the-mission dept

As was noted in the writeup of the ODNI's First Ever Transparency Report, this tentative and forced step into transparency was a step forward for No Such Agency, even if each document release has been accompanied by the unmistakable sound of gritting teeth and a nearly universal refusal to acknowledge that most of the "openness" had been compelled by court orders following FOIA lawsuits.

Also noted was the fact that the new transparency was short a few documents, namely the March renewal order for the bulk phone metadata collection. Lo and behold and under the cover of late Friday afternoon (to better be smuggled in as the nation punched its collective timeclock), the Office of the Director of National Intelligence released two orders: the March and June renewals of the bulk records collections.

There's nothing very notable about either of the two renewal orders, both of which say roughly the same thing and wear their fashionable black redaction marks on exactly the same words. What is notable is the memorandum opinion released with them, which details the events that have occurred in recent months that have affected both the collection and the minimization procedures the NSA follows.

In the past few months, two metadata-related lawsuits have resulted in court orders demanding preservation of evidence, some of which was due to age off as part of the normal minimization procedures. The court orders wreaked a bit of havoc in FISC judge Reggie Walton's court, forcing him to first order data to be destroyed (noting again that the minimization procedures were one of the few things that even allowed this bulk collection of American data to be legal) and finally, once the DOJ had stopped misleading him (and the cases' plaintiffs themselves), to halt the destruction of relevant (to the cases, not to counterterrorism) metadata.

Throughout it all, the DOJ performed a remarkable plate-spinning act, keeping all decisions aloft while it contemplated best-case scenarios. Unlike true plate-spinning acts, the DOJ really didn't care whether the plates continued spinning or crashed to the ground, as it's unlikely to ever allow this evidence to be used in court. (Indeed, it spent much of its plate-spinning time destroying data it was ordered to preserve.) Though the three involved courts had plenty to do to ensure the rights of non-NSA Americans weren't violated, the DOJ's main purpose was to shuttle paperwork back and forth until it could be safely revealed that the multi-billion dollar superspyplex was incapable of doing the very thing under discussion: preserving data past the expiration date. (This should have come as no surprise, considering the NSA had announced previously that it was incapable of searching its own email system. [And yet, it claims to have found only one email related to Snowden whistleblowing attempts.])

Also, during the past few months, two contradicting court opinions on the legality of the bulk record collections were released. The one that found it unconstitutional (DC district court judge Richard Leon) was stayed awaiting appeal, changing nothing in the NSA's plans to collect it all, but prompting some reflection from the FISA court. The other confirmed the status quo.

All the while, millions of gallons of prime (and confidential) desert water (acquired at budget rates) continued to flow into the NSA's new Utah spybox even as, ironically, fires broke out within the building itself. The security state is still alive and well… even if it seems to be pausing more frequently to catch its breath and favoring a limb or two.

But back to the order. During the disarray of the last few months, two bulk records orders were renewed. While the memorandum changes nothing, it does at least acknowledge the fact that the collection is under considerable public scrutiny, not to mention awaiting implementation of the administration's reforms. But it does point out that there are really only two entities that can bring a complete halt to this collection -- and so far, neither have made that move.
The unauthorized disclosure of the bulk telephony metadata collection more than a year ago led to many written and oral expressions of opinions about the legality of collecting telephony metadata. Congress is well aware that this Court has interpreted the provisions of 50 U.S.C. 1861 to permit this particular collection, and diverse views about the collection have been expressed by individual members of Congress. In recent months, Congress has contemplated a number of changes to the Foreign Intelligence Surveillance Act, a few of which would specifically prohibit this collection. Congress could enact statutory changes that would prohibit this collection going forward, but under the existing statutory framework, I find that the requested authority for the collection of bulk telephony metadata should be granted. Courts must follow the law as it stands until the Congress or the Supreme Court changes it.
The House stripped the USA Freedom Act of nearly all of its teeth before passage, which makes it a long shot for Congress to explicitly outlaw this collection any time soon. Various other reform measures, including an amendment that slammed one domestic surveillance backdoor shut, have fared better.

The issue may eventually end up in the Supreme Court (which has shot down two attempts already), but despite a recent victory for the Fourth Amendment, the court system's deference to "national security" arguments has generally resulted in wins for the government. Even if it does land in front of the justices, there's little to indicate that whatever case forces consideration of the issue will be the best scenario to "test" the issue, much less provide a solid platform for Fourth Amendment arguments. And even if the Supreme Court does agree bulk records collection violates citizens' rights, the government will swiftly act to ensure the decision has only a minimal effect on its collection efforts.

Finally, there's a small paragraph that indicates that the release of these two documents was, again, not the result of the ODNI's half-hearted embrace of openness.
In light of the public interest in this particular collection and the government's declassification of related materials, including substantial portions of Judge Eagan's August 29 Opinion, Judge McLaughlin's October 11 Memorandum, and Judge Collyer's March 20 Opinion and Order, I request pursuant to FISC Rule 62 that this Memorandum Opinion and Accompanying Primary Order also be published, and I direct such request to the Presiding Judge as required by the Rule.
The rule cited allows FISC judges to order the release of orders, opinions and decisions and is by no means a recent development. The rules date back to 2006, but it's only in the last year that we've seen anyone exercise this option. Does anyone out there think this would have occurred without "unauthorized disclosure?" Those looking to lock up Snowden for his leaks would do well to remember small details like this. Going through "proper channels" wouldn't have forced this level of transparency or prompted the secretive FISA court to start ordering declassifications on its own. It took a whole lot of pushing and the stripping away of layer after layer of secrecy and plausible deniability to achieve this.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    That One Guy (profile), Jun 30th, 2014 @ 8:30pm

    Trying to have it both ways

    The two following sentences struck me as being pretty much directly contradicting each other.

    On the one hand you've got this...

    Congress is well aware that this Court has interpreted the provisions of 50 U.S.C. 1861 to permit this particular collection, and diverse views about the collection have been expressed by individual members of Congress.

    Yet later on they claim this...

    Courts must follow the law as it stands until the Congress or the Supreme Court changes it.

    So which is it? Is it their 'interpretation' that allowed such mass data collections to go on, or isn't it?

    The claim that their hands are tied, and that they can't do anything about it is, to put it bluntly, 'the least untrue answer'. They could stop it now simply by revoking their 'interpretation' of the law, the one that enabled the bulk collection of data and gave it legal backing.

    Yes Congress or the SC could do something to fix the problem, but when the FISA 'court' is all of one 'secret interpretation' away from ignoring or neutralizing any 'fixes' that could be proposed and enacted to stop bulk data collection, the responsibility, and blame, for the program ultimately rests on the FISA 'court' judges.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Jun 30th, 2014 @ 9:49pm

    Are any current senators or house 'members' former fisc judges? The lower case is to indicate that I do not think much of any of these institutions, so why would I capitalize their title?

    Respect is earned, and the US political system hasn't earned respect for close to 30 years.

    Those of us that are a little older remember a day when people could agree to disagree and find a common middle ground. Like adults.

    It often wasn't pretty, but more often than not the countries business was conducted and we got along.

    Today? Ha! How could you possibly make any points against your opponent if you compromised at all? If you did they would use it against you anyway, right?

    I never thought I would live to see the day that the elementary school bullies would take over the whole country. and in doing so bring politics down to little more than shouting matches. I literally expect that several of them will fall to their backs and refuse to get up if everyone doesn't accept their way.

    WTF Happened?!? Politicians have always been bad actors. We KNOW this! Why have we become so stupid that we let them get away with this s*it these days?

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Jun 30th, 2014 @ 9:58pm

    and this is exactly why the use and those who give permission to collect and use the information need serious changes! how can anyone who is supposed to be protecting the USA and it's people, contrive to erode the freedoms and privacy that at one time were the by-word of the USA? it was what it supposedly stood for and would launch itself against those who stated differently. consider what it has now become, a shadow of it's former self! i didn't realise that paranoia could do so much damage!!

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Jun 30th, 2014 @ 10:58pm

    And yet they get "offended" they're being called rubberstamp Court.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Jun 30th, 2014 @ 11:00pm


    The mania for giving the Government power to meddle with the private affairs of cities or citizens is likely to cause endless trouble . . . and there is great danger that our people will lose our independence of thought and action . . . and sink into the helplessness of [one] who expects his government to feed him when hungry, clothe him when naked, to prescribe when his child may be born and when he may die, and, in fine, to regulate every act of humanity from the cradle to the tomb, including the manner in which he may seek future admission to paradise. ~ Mark Twain

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Jun 30th, 2014 @ 11:00pm

    I think the Supreme Court justices are probably scared of the consequences they'd face for ruling against the military industrial complex. If there's any dirt to be found on any of them, the spy agencies will find it.

    We already know how the Executive Branch and Congress view the Constitution. Not worth the paper it's written on sums their views up nicely. If the Supreme Court rules against it, that will mean all three branches of government have failed their constitutional responsibilities and oaths of office.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Jul 1st, 2014 @ 4:27am

    Re: Trying to have it both ways

    It's like with little kids when they know they're doing something mischievous, look at you with "that look" on their faces, do it anyway and when you say something they go "You didn't tell me to stop!".

    reply to this | link to this | view in thread ]

  8. identicon
    TestPilotDummy, Jul 1st, 2014 @ 4:47am


    what makes ya think there ain't corruption in the courts. and with lifetime appointees, that's going to sting.

    This battle has to be won by indicting oath breakers. for none of this cruft could have wafted in without their consent to break their oaths.

    talking to congress about it is "a dialogue with the enemy."

    with electronic voting -- which your human eye can't see.
    with corporate media -- steering which qualified driver in the deth-machine.

    Yeah, I think I solved the suicide problem in the military. You'll understand it when it hits ya.

    But until then go on shout it out like a brainwashed parrot,

    "GOOD TO GO!"

    Ya sure are bitch!

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Jul 1st, 2014 @ 4:54am

    But how the hell do they think that kind of mass spying is Constitutional or in agreement with Human Rights? It's like "hey, the law says the gov can assassinate there's nothing we can do".


    reply to this | link to this | view in thread ]

  10. identicon
    David, Jul 1st, 2014 @ 6:35am


    It's like "hey, the law says the gov can assassinate there's nothing we can do".

    More like "hey, the law says the gov can assassinate let's compile a wish list".

    reply to this | link to this | view in thread ]

  11. identicon
    Michael, Jul 1st, 2014 @ 7:12am

    Re: Trying to have it both ways

    Their interpretation of the law is how it currently stands. Since they have already interpreted it as legal, the law has to change for them to reinterpret it.

    Much of the time, this is good. It means you do not have to hope that the judicial system will read laws differently one day to the next and what was previously legal no longer is without changes from Congress.

    At the end of the day, it is the executive branch that everyone needs to be upset with. Obama can stand back and say that this is all legal all he wants, but it is entirely in his power to stop doing it either way.

    reply to this | link to this | view in thread ]

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