Unveiled NSA surveillance ruling offers glimpse into US legal rationale
MOSCOW, September 16 (RAPSI, Ingrid Burke) – A document released Tuesday by the US Foreign Intelligence Surveillance Court (FISC) shed light into the shadowy US legal strategy underlying the National Security Agency’s (NSA) large-scale telephone data collection.
The surveillance activities at issue were described by the court document in the following terms: “the government requested Orders from this Court to obtain certain business records of specified telephone service providers… 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 of [REDACTED] individual authorized investigations to protect against international terrorism and concerning various international terrorist organizations.”
Among the facts revealed Tuesday was the court’s contention that none of the companies ordered to produce such data had raised challenges.
According to the document: “To date, no holder of recrods who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.”
Edward Snowden became a household name early last summer after the former NSA contractor began leaking documents exposing large-scale surveillance operations targeting US citizens.
Since that time, a number of initiatives have been taken to elucidate some of the more controversial practices attributed to this enigmatic intelligence powerhouse.
Last week, for instance, Director of US National Intelligence James Clapper declassified and released a number of documents relating to “certain sensitive intelligence collection programs.” Announcing the release of the documents, Clapper explained, “Consistent with this directive, today I authorized the declassification and public release of a number of documents pertaining to the Government’s collection of bulk telephony metadata under Section 501 of the FISA, as amended by Section 215 of the USA PATRIOT Act.”
This week, FISC Judge Reggie B. Walton ordered the publication of certain court documents that had been redacted and declassified by the government in compliance with an August 23 court directive.
Included among those documents was an amended memorandum opinion, dated August 29, wherein the FISC outlined its reasons for having granted in July a request by the US Federal Bureau of Investigation (FBI) to require “the ongoing daily production to the [NSA] of certain call detail records or ‘telephony metadata’ in bulk.”
The heavy-on-the-tongue, but recently ubiquitous term “telephony metadata” refers to “comprehensive communications routing information, including but not limited to session identifying information…, trunk identifier, telephone calling card numbers, and time and duration of call,” according to the order. Notably, the following items fall outside of the term’s scope: “the substantive content of any communications…, or the name, address, or financial information of a subscriber or customer.”
In considering the government’s application, the court focused on Article 4 of the US Constitution and Section 215 of the Patriot Act. When neither legal analysis produced, in the court’s view, any significant impediment, the orders were issued.
The Fourth Amendment to the US Constitution protects the right to security against unreasonable searches and seizures, and establishes probable cause and other specific safeguards as prerequisites for the issuance of a warrant.
Establishing a lack of insurmountable legal obstacles posed by the Fourth Amendment or Section 215, the court reasoned: “because 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 [Patriot Act]. The Court concludes that there are facts showing reasonable grounds to believe that the records sought are relevant to authorized investigations… For these reasons… the Court has GRANTED the Orders requested by the government.”
The court explained in the document that by the terms of its order, access to the data would be restricted by various means, including “through technical means, through limits on trained personnel with authorized access, and through a query process that requires a reasonable, articulable suspicion (RAS), as determined by a limited set of personnel, that the selection term (eg, a telephone number) that will be used to search the data is associated with one of the identified international terrorist organizations.”
The court further noted that the government is prohibited from making a RAS determination for selection terms when there exist reasonable grounds to believe that such were being used by “US persons” based exclusively on activities protected by the First Amendment of the US Constitution.
The First Amendment to the US Constitution protects the freedoms of religion, speech, the press, and peaceful assembly, stating: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The document added that the court enjoys the oversight authority to ensure adherence to these stipulations, and required the government to immediately notify it of any failures of compliance.
While the document noted that the prior authorization period hadn’t turned up any compliance incidents, a footnote suggested that things hadn’t always run so smoothly: “The Court is aware that in prior years there have been incidents of non-compliance with respect to NSA’s handling of produced information. Through oversight by this Court over a period of months, those issues were resolved.”
The amended memorandum opinion added that the government had demonstrated that “this production has been and remains valuable for obtaining foreign intelligence information regarding international terrorist organizations.”
Notably, the court touched on the summer’s high-profile leaks, and in doing so expressed a certain degree of doubt with regard to the fate of such surveillance programs.
In the words of the document: “This Court is mindful that this matter comes before it at a time when unprecedented disclosures have been made about this and other highly-sensitive programs designed to obtain foreign intelligence information and carry out counter-terrorism investigations. According to NSA Director Gen. Keith Alexander, the disclosures have caused ‘significant and irreversible damage to our nation.’ In the wake of these disclosures, whether and to what extent the government seeks to continue the program discussed in this Memorandum Opinion is a matter for the political branches of government to decide.”