Secret Court Defends NSA Data Collection
In an opinion made public on Sept. 17, a judge for the US Foreign Intelligence Surveillance Court ruled that a program under which the federal government collects phone data in a massive database is legal.
Some Opinions Released
The FISC is a specially created federal court that oversees the National Security Agency’s foreign intelligence program, including its requests for warrants and other surveillance efforts within the United States. Its judges include federal district judges from around the country, as well the chief justice of the U.S. Supreme Court, John Roberts.
After Ed Snowden’s leaks of NSA information showing that the government was collecting large amounts of data not only on terrorists but also American citizens, the FISC has come under increasing scrutiny.
In fact, the government agreed to release some of the court’s decisions. The most recent opinion to be released explains why the NSA’s data collection efforts, including building and accessing a database of all phone records from telecom companies, are legal.
Defense of Database-Building
In the opinion, Judge Claire Eagan, a federal district judge from Oklahoma, considers whether the FBI’s request for the ongoing production of phone records to the NSA violates the Fourth Amendment’s protections against unreasonable search and seizure.
The opinion “is a judicial analysis of the NSA program that Snowden first disclosed — and the one that has produced the most controversy,” explains Stewart Baker, a partner with Steptoe & Johnson in Washington, D.C., and a former policy official at the Department of Homeland Security.
“The significance of the decision is that it supports the government’s claim that every one of Snowden’s leaks compromised actions by NSA that proceeded in accordance with law,” Baker says.
“NSA asked permission to build a database of phone metadata — records of who called whom for how long — on all calls into, out of, and within the United States,” he explains. While the NSA agreed to strict limits on its searches of the database, members of Congress as well as privacy groups cried foul.
“This decision shows that the [FISC] disagreed, ruling that the program was lawful,” Baker says. Specifically, Judge Eagan says that the call records are relevant to the FBI’s terrorist surveillance efforts under the Patriot Act because terrorists use phone systems to communicate with each other, and the government needs the data in order to identify them.
Privacy Groups’ Challenges
At least two privacy groups have brought legal actions to force the release of more opinions by the FISC. The ACLU announced on Sept. 13 that the FISC ordered the government to review for release some of its opinions concerning the phone records collection program at issue in the Sept. 17 opinion.
And the Electronic Privacy Information Center (EPIC) filed a petition directly with the U.S. Supreme Court in July to challenge FISC’s order to Verizon to produce to the NSA all of its customers’ call detail records on an ongoing basis.
The FISC may be the lesser of the possible evils that come with the government’s increased surveillance needs since 9/11. “Congress provided for the court and its classified procedures because that was the only way to provide judicial oversight for searches and intercepts conducted for intelligence purposes,” says Baker.
Congress only had three choices, he says: Declare that no secret intelligence would be gathered in the United States; say it could, but that it didn’t require judicial oversight; or say it could and create a court to oversee the process. “Most civil libertarians in Congress thought that option 3 was the best,” Baker says.
Since a court overseeing secret intelligence would be useless if its operations weren’t secret as well, the FISC must walk a fine line between protecting classified information needed to fight terrorism and addressing Americans’ concerns with their own privacy.
The opinion is unlikely to end the controversy that has surrounded the court. While Baker notes that the opinion “undermines the claims by many in Congress that the program is inconsistent with Congress’s intent,” the ACLU has vowed to continue its efforts.
Pointing to Judge Eagan’s statement that terrorists use phones, a staff attorney with the ACLU wrote on Sept. 18 that her “opinion never addresses how far its reasoning might go.” Such reasoning could be used, he says, to “justify[ ] pervasive and indiscriminate surveillance of not just our phone records, but our emails, credit-card transactions, medical records, and more.”