Posted by on June 06, 2013 in Blog

By Isaac Levey
AAI Summer Legal Fellow

The British newspaper The Guardian has reported that the National Security Agency (NSA) is currently in the midst of a massive operation collecting “metadata” on phone records from Verizon. The operation is under an authorization from the Foreign Intelligence Surveillance Court (FISC), which is a top-secret court that hears applications for national security-related surveillance. The order (which can be read in full here) was apparently issued on April 25, and expires on July 19. Verizon is required to give the NSA “all call detail records or ‘telephony metadata’ created by Verizon for communications, (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” While the broad scope of this order is troubling, there are two things that should be kept in mind. First, it does not permit listening in on telephone calls (what the law calls ‘the content of communication’; and second, it does not include “name, address, or financial information of a subscriber or customer.” 

Under current Supreme Court precedent, this type of surveillance probably doesn’t violate the Constitution. The Fourth Amendment, which provides that Americans must be free from unreasonable searches and seizures, does not protect information in which a person has no “reasonable expectation of privacy.” The Supreme Court said in Smith v. Maryland (1979) that a person doesn’t have that expectation in the phone numbers they dial, since they know the phone company will have that information. This is known as the “third-party doctrine,” which holds that when you share information with someone, you take the risk that they will tell someone else. There is a strong argument that this notion no longer makes sense in the age of the Internet, but it is current law nonetheless. And even if there was a reasonable expectation of privacy, that would only mean that getting the information required a warrant.  The secret order from FISC meets that requirement.

The more serious legal question is whether the order satisfies the requirements of the federal law under which it was granted. That provision is Title 50, United States Code, Section 1861, which was added to the Foreign Intelligence Surveillance Act (FISA) by the USA PATRIOT Act in 2001. Section 1861 allows the appropriate agent to ask the FISC for an order collecting “books, records, papers, documents” or other “tangible things” in order to assist in gathering intelligence information or antiterrorism activities. Clearly, this allows the collection of phone records, but there also must be “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation… to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities,” under § 1861(b)(2)(A). The phrase “not concerning a United States person” means that if the main purpose of the investigation is to focus on one person, that person cannot be a U.S. citizen or permanent resident.

It may be possible to read this language as authorizing the dragnet of metadata that the NSA has taken from Verizon, but it seems safe to say that most people, when reading that, would think it requires some level of individualized suspicion. That is to say, the more natural reading of the word “relevant” in that section is that there is a specific, traceable connection between the phone connections sought and a specific suspected terrorist or foreign intelligence agent. There must be a specific connection between the data to be collected and a terrorist group or person suspected of wrongdoing.  FISA has never been understood to permit the collection of this much data just to look for patterns.

On the other hand, the order the Guardian has published doesn’t explain the FISC’s reasoning, or the information the government used to support its application.  Proceedings before the FISC are highly classified and top-secret, and it could be that based on the information the FISC judge had, this order was a plausible interpretation of 50 U.S.C. § 1861.  But this case is a troubling development for those concerned about civil liberties in the “war on terror.”  Hopefully, it will reignite interest in this very important, but often ignored, subject.

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