A newly declassified opinion from the Foreign Intelligence Surveillance Court from this summer shows the court’s interpretation of the controversial Section 215 of the USA PATRIOT Act that’s used to justify the National Security Agency’s bulk telephone metadata collections, and reveals that none of the companies that have been served with such orders has ever challenged one.
The opinion, which is one of just a handful of such documents to be made public in the last few months as the leaks of the NSA’s collection and cryptographic capabilities have continued to mount, lays out much of the court’s thinking and reasoning for continuing to grant the agency permission to gather telephone metadata on hundreds of millions of Americans. And what it shows is that the court’s ability to impose restrictions on the NSA’s collection and analysis methods is severely restricted by legal precedent.
The FISC opinion was written by Judge Claire V. Eagan and in it she explains that previous Supreme Court decisions have laid the legal groundwork that the NSA uses today to defend against accusations that its collection methods violate the Fourth Amendment protections against unreasonable search and seizure or that the collection violates a reasonable expectation of privacy regarding phone communications. In Smith v. Maryland, the Supreme Court ruled that people have no reasonable expectation of privacy with phone calls, because the phone company has equipment to record those calls and the numerical data related to them.
That reasoning is still used to underpin the NSA’s metadata collection, using the argument that if one person doesn’t have such protection under the Fourth Amendment, then neither does a large group of people.
“Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo,” the opinion says.
But perhaps the most interesting part of the opinion is the portion that explains the way that Section 215 is applied to the NSA’s metadata collection activities. In the opinion, Eagan contrasts Section 215 with a portion of the criminal code called the Stored Communications Act. That section includes some language that requires the government to provide “specific and articulable facts” to support its need for records or other information in a criminal investigation. That clause is not included in Section 215, and in fact only requires a statement of facts about the terrorism investigation in question.
“In enacting Section 215, Congress removed the requirement for ‘specific and articulable facts’ and that the records pertain to ‘a foreign power or an agent of a foreign power.’ Accordingly, now the government need not provide specific and articulable facts, demonstrate any connection to a particular suspect, nor show materiality when requesting business records under Section 215. To find otherwise would impose a higher burden–one that Congress knew how to include in Section 215, but chose to dispense with,” the opinion says.
In other words, Section 215 is written and interpreted in such a way so as to allow the NSA’s bulk metadata collection methods and to severely limit any challenges to it, so long as the agency is following the minimization and other guidelines set forth. Eagan’s opinion also makes it clear that the only legal challenges to this section can come from the companies on which the orders are served, and not from individuals whose records may be included. However, not one company has ever raised such an objection.
“To date, no holder of records who has received an Order to produce bulk telephone metadata has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has ever challenged the legality of such an order, despite the explicit statutory mechanism for doing so,” Eagan’s opinion says.
Image from Flickr photos of Cameron Russell.