FISA Judge Rules NSA Mass Telephony Data Collection is Constitutional

The FISA Court today released the August 29, 2013 opinion by FISA Court Judge Claire Eagen finding the NSA's mass telephony data program is constitutional and statutorily permissible.

The opinion is here.

[B]ecause there is no cognizable Fourth Amendment interest in a telephone company's metadata that it holds in the course of its business, the Court finds that there is no Constitutional impediment to the requested production.


Finding no Constitutional issue, the Court directs its attention to the statute. The Court concludes that there are facts showing reasonable grounds to believe that the records sought are relevant to authorized investigations. This conclusion is supported not only by the plain text and structure of Section 215, but also by the statutory modifications and framework instituted by Congress.

Furthermore, the Court finds that this result is strongly supported, if not required, by the doctrine of legislative re"enactment or ratification. For these reasons, for the reasons stated in the Primary Order appended hereto, and pursuant to 50 U.S.C. § 1861©(1), the Court has GRANTED the Orders requested by the government.

The appended order approves the collection of "all call detail records or "telephony metadata" created by (blacked out) on a daily basis. It uses the term "BR Metadata" for "business records metadata." In a footnote, the Court defines telephone metadata:

"telephony metadata" includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.

Telephony meta data does not include the substantive content of any communication, as defined by 18 U.S.C. § 2510(8), or the name, address, or financial information of a subscriber or customer. Furthermore, this Order does not authorize the production of cell site location information (CSLI).

The order authorizes collection of:

all call detail records or "telephony metadata" created by (blacked out) for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls. (blacked out sentence follows.)

The Court describes the Government's request:
[T]he government requested Orders from this Court to obtain certain business records of specified telephone service providers. Those telephone company business records consist of a very large volume of each company's call detail records or telephony metadata, but expressly exclude the contents of any communication; the name, address, or financial information of any subscriber or customer; or any cell site location information (CSLI). Primary Ord. at 3 n.l.5 The government requested production of this data on a daily basis for a period of 90 days.

The sole purpose of this production is to obtain foreign intelligence information in support individual authorized investigations to protect against international terrorism and concerning various international terrorist organizations. ...In granting the government's request, the Court has prohibited the government from accessing the data for any other intelligence or investigative purpose.

The NSA can share some of the data with the FBI or other executive agencies. The order says the FBI must minimize any such data received from the NSA.

Some findings used to justify the issuance of the data collection order:

1. There are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations (other than threat assessments) being conducted by the FBI under guidelines approved by the Attorney General under Executive Order 12333 to protect against international terrorism, which investigations are not being conducted solely upon the basis of activities protected by the First Amendment to the Constitution of the United States. [50 U.S.C. § 1861©(1)]

2. The tangible things sought could be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things. [50 U.S.C. § 1861©(2)(D)]

The appended order has several pages on how the data is to be stored and who is authorized to access it and who it may be shared with. Before sharing the information on a U.S. person with agencies outside the NSA (like the FBI), there must be a determination that:

....the information identifying the U.S. person is in fact related to counterterrorism information and that it is necessary to understand the counterterrorism information or assess its importance personnel (1) in order to enable them to determine whether the information contains exculpatory or impeachment information or is otherwise discoverable in legal proceedings or (2) to facilitate their lawful oversight functions.

There's a provision providing for the mandatory destruction of the collected data no later than five years (60 months) after its initial collection.

In another footnote:

The Court understands that NSA receives certain call detail records pursuant to other authority, in addition to the call detail records produced in response to this Court's Orders.

And in another footnote:

In addition, the Court understands that NSA may apply the full range of SIGINT analytic tradecraft to the results of intelligence analysis queries of the collected BR metadata.

There's a reporting requirement:

Each report shall include a statement of the number of instances since the preceding report in which NSA has shared, in any form, results from queries of the BR metadata that contain United States person information, in any form, with anyone outside NSA. For each such instance in which United States person information has been shared, the report shall include NSA's attestation that one of the officials authorized to approve such disseminations determined, prior to dissemination, that the information was related to counterterrorism information and necessary to understand counterterrorism information or to assess its importance.

The authorization regarding (blacked out) expires on October 11, 2013.

< Federal Judiciary to Seek Mandatory Minimum Sentence Reform | Wednesday Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    So... (5.00 / 3) (#1)
    by sj on Tue Sep 17, 2013 at 04:29:33 PM EST
    ... is the FISA court Constitutional? I'm only partially facetious. Hidden courts interpreting the Constitution. Does that strike anyone else as ... completely unsound? One judge -- in a court with no oversight of its own -- deciding that the private business/movements of everyone in the world could be collected?

    One federal judge. Selected by Chief Justice (5.00 / 2) (#2)
    by oculus on Tue Sep 17, 2013 at 04:41:06 PM EST

    So tell us, how does one (5.00 / 1) (#7)
    by Mr Natural on Tue Sep 17, 2013 at 08:44:10 PM EST
    appeal a secret ruling by a secret court?

    Secretly, (5.00 / 2) (#8)
    by Zorba on Tue Sep 17, 2013 at 09:06:51 PM EST

    In the streets. (5.00 / 1) (#9)
    by Edger on Tue Sep 17, 2013 at 09:08:50 PM EST
    But most people would probably say that's too much like work and there must be something good on tv?

    I see (5.00 / 1) (#18)
    by sj on Wed Sep 18, 2013 at 11:13:41 AM EST
    you've acquired a stalker.

    Heh! (5.00 / 1) (#20)
    by Edger on Wed Sep 18, 2013 at 07:09:15 PM EST
    I guess so. The ultimate compliment? ;-)

    You and Larry Klayman (none / 0) (#12)
    by MKS on Wed Sep 18, 2013 at 01:34:40 AM EST
    He wants to take to the streets too.

    Maybe you two could team up.


    They go to (none / 0) (#16)
    by jbindc on Wed Sep 18, 2013 at 06:49:34 AM EST
    The FISCR (Foreign Intelligence Surveillance Courts of Review)

    The United States Foreign Intelligence Surveillance Court of Review (FISCR) is a U.S. federal court whose sole purpose is to review denials of applications for electronic surveillance warrants (called FISA warrants) by the United States Foreign Intelligence Surveillance Court (or FISC). The FISCR was established by the Foreign Intelligence Surveillance Act of 1978 (known as FISA for short) and consists of a panel of three judges. It is not an adversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs as amici curiae if they are made aware of the proceedings. Records of the proceedings are kept classified, though copies of the proceedings with sensitive information redacted are very occasionally made public. The government may appeal decisions of the FISCR to the Supreme Court, which hears appeals on a discretionary basis.

    The judges of the Court of Review are district or appellate federal judges, appointed by the Chief Justice of the United States for seven-year terms. Their terms are staggered so that there are at least two years between consecutive appointments. A judge may be appointed only once to either the FISCR or the FISC.

    The FiSC review panel (none / 0) (#17)
    by KeysDan on Wed Sep 18, 2013 at 09:29:36 AM EST
    is kept as busy as the Maytag repairman.   A good retirement job, that could be phoned-in (no, not a good idea, maybe carrier pigeon) on Saturday mornings.  

    I, for one (5.00 / 4) (#3)
    by lentinel on Tue Sep 17, 2013 at 04:54:52 PM EST
    am happy and relieved to know that the shredding of our constitution is constitutional.

    Who argued... (none / 0) (#14)
    by heidelja on Wed Sep 18, 2013 at 04:16:38 AM EST
    ...that it was not constitutional?

    The (5.00 / 2) (#15)
    by lentinel on Wed Sep 18, 2013 at 05:23:02 AM EST

    A rubber-stamp kangaroo court (5.00 / 2) (#4)
    by Anne on Tue Sep 17, 2013 at 05:25:34 PM EST
    makes it official: nothing's safe from the reach of government anymore.

    No way to express the level of disgust I'm feeling.

    Just keep n mind (5.00 / 2) (#5)
    by scribe on Tue Sep 17, 2013 at 06:36:57 PM EST
    the opinion relies on false facts, and on the so-called "presumption of regularity".  This presumption is a rule in which government officials are presumed to be doing their jobs in accordance with the law.  What these rubber-stamp judges (this presumption was invoked in the DC Circuit to thwart habeas for Gitmo captives) always overlook when invoking this presumption is that it has three parts.  These are:

    1.  generally, government officials are presumed to be doing their jobs within the law
    2.  if the adversary party had any proof that the government officials were not doing their jobs within the law, they would bring it forward
    3.  if there is no (substantial) proof before the court that the governmental officials were violating the law, then the presumption applies.

    So, what's missing in the FISA Court are parts #2 and #3.  There are no adversary parties in the FISA court, and even if there were, they have no way of presenting proof to show misconduct, because everything is so highly classified no one other than the government (claiming they're obeying the law) can know what they're doing and whether it's within the law.  Moreover, there's no opportunity for anyone to participate other than the government - the government has fought toth and nail to prevent anyone from even having standing to do anything in the FISA Court.

    In short, invoking the presumption of regularity is a blatant piece of intellectual dishonesty.  It's pretty much what one might expect from a jurist specifically selected by Roberts for this job.

    Moreover, anything the FISA Court does arguably violates the long-standing prohibition on advisory opinions, a prohibition that dates back to the first Washington administration.  

    In short, it's a piece of crap wrapped in verbiage that makes it look less like it's crap.  Doesn't change its nature....

    It's not the privacy of the telephone company... (5.00 / 3) (#6)
    by unitron on Tue Sep 17, 2013 at 07:09:47 PM EST
    ...about which I am concerned, and if their records about what numbers we call when from what numbers is available to all and sundry, that's our privacy that's being ridden roughshod over, not the phone company's.

    Since the No. 1 News Station, FOX, (5.00 / 2) (#10)
    by NYShooter on Tue Sep 17, 2013 at 09:47:12 PM EST
     is so fond of telling us, "there's two sides to every story," I would like to hear the justification for this ruling. I don't mean the very narrow legal mumbo jumbo FISA Court Judge Claire Eagen used in his ruling. Of course, it's "legal." Virtually every great atrocity in history was "legal." I mean I'd like to hear from the Legislators, our Representatives, who, in our name, presented, and approved, this mass assault on our liberties.

    I'm serious; has anyone here witnessed a Senator, or high ranking Representative, saying publicly, or even privately, "Yes, I believe it is morally justified to eviscerate the most basic tenets of our Constitution to further the goals of our "War On Terror." "Furthermore, I believe it is prudent to give one person, chosen by another one person, operating in total secrecy, and subject to virtually no review, complete authority and power over the most important decisions one can possibly have.........life & death."

    Like I said, I'm serious, please, no snark. We have made our displeasure known. There are some very smart people on the other side, and they have gotten these laws and rulings enacted. I would like to hear an intelligent defense of their beliefs, and actions.  

    Wired: US Telcos have never challenged (5.00 / 1) (#11)
    by Mr Natural on Tue Sep 17, 2013 at 10:21:20 PM EST
    NSA demands for your metadata.

    A day after the Guardian`s story, however, Verizon declined to acknowledge the program but also said it was just following orders.

    "Just following orders."  Why does that phrase sound so familiar?

    When it is useful (5.00 / 2) (#19)
    by KeysDan on Wed Sep 18, 2013 at 11:27:30 AM EST
    to reveal classified information, it becomes declassified.  Judge Claire Egan requested that her ruling be released because of "public interest."

    But, it is still unclear to me that there is a good rationale for the classification of judicial interpretation of law. Certainly, any case-specific and/or intelligence-sensitive aspects can be deleted.

     Accordingly to the NYT, James Clapper, who in March denied under oath to the Senate Intelligence Committee that the government was collecting data that  we now know it has been collecting for years, told a roomful of intelligence contractors that the conversation triggered by Edward Snowden's leaks "actually  needed to happen," and may represent a "good side" to it all.  Guess this proves that you can have a "conversation" without much information and Snowden can come home now.