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General News    H4'ed 9/17/13

FISA Court Releases Opinion to Show Americans Should Really Be Outraged at Phone Companies, Congress

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  The secret surveillance court, which authorizes requests for bulk data collection by the National Security Agency under the "business records" provision of the PATRIOT Act, has released a court opinion and order related to a recent request for "certain business records of specified telephone service providers." The disclosure is, for the most part, unprecedented.

Intelligence agency leaders have scratched their heads and displayed bewilderment when asked if Foreign Intelligence Surveillance Court (FISC) opinions could be made public in some form. They have claimed classified information is so intertwined in opinions that they could not be redacted and released. While this disclosure is not a signal that FISC judges are going to begin to regularly release their opinions to the public voluntarily, it does show that it can be done and there should be no tolerance for excuses that only serve intelligence agencies preference for secrecy.

The opinion and order indicates that, on August 29, the FISC authorized another round of collection of "telephone company business records," which consist of a very large volume of each company's call detail records or telephony metadata." But, according to the opinion, the requested records "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)."

This is the bulk data collection that touched of the first wave of protest and was revealed when The Guardian"s Glenn Greenwald published a story on June 6 revealing how the NSA was collecting the phone metadata of Verizon customers on a daily basis. The data is produced on a daily basis for a period of 90 days to "obtain foreign intelligence information" to protect against "international terrorism." The court and intelligence agencies argue it is authorized under the "business records" provision or Section 215 of the PATRIOT Act.

The opinion includes the legal justification for collecting this data in bulk. It cites the Supreme Court when arguing the collection does not violate the Fourth Amendment and citizens have "no legitimate expectation of privacy in the information."

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"The telephone user, having conveyed this information to a telephone company that retains the information in the ordinary course of business, assumes the risk that the company will provide that information to the government," the opinion states. There is "no legitimate expectation of privacy in telephone numbers dialed."

The opinion also argues, "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."

What is remarkable about the rest of the opinion is that it appears to have been written to challenge perceptions of the court as government collaborators. The court appears to have wanted to clear its name and make the case that they have not been derelict in their duty by rubber stamping surveillance; in fact, if anyone has been derelict and rubber stamped surveillance it is the Congress or the telephone companies.

Recall, Verizon Executive Vice President Randy Milch reacted to The Guardian story by suggesting the company had no choice but to turn over the records:

You may have seen stories in the news about a top secret order Verizon allegedly received to produce certain calling information to the U.S. government.

We have no comment on the accuracy of The Guardian newspaper story of the documents referenced, but a few items in these stories are important. The alleged court order that The Guardian published on its website contains language that:

  • compels Verizon to respond;
  • forbids Verizon from revealing the order's existence; and
  • excludes from production the "content of any communication . . . or the name, address, or financial information of a subscriber or customer."

Verizon continually takes steps to safeguard its customers' privacy. Nevertheless, the law authorizes the federal courts to order a company to provide information in certain circumstances, and if Verizon were to receive such an order, we would be required to comply.

According to the opinion, this statement by Milch was completely disingenuous. Congress included an "enhanced process" under Section 215 for challenging government requests for records because there is such a low threshold the government has to meet to compel production.

"To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order," FISC judge Claire V. Eagan wrote. "Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so."

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Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure." He was an editor for
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