FISA Judge Rules NSA Mass Telephony Data Collection is Constitutional
Posted on Tue Sep 17, 2013 at 04:07:24 PM EST
Tags: NSA Warrantless Surveillance (all tags)
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.
[More...]
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:
The Court describes the Government's request: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.)
[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.
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