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Surveillance Court: NSA’s Data Collection Does Not Violate Fourth Amendment

FISC Releases its Reasoning - Mass Collection of Telecoms Metadata Does Not Contravene the Fourth
FISC Releases its Reasoning - Mass Collection of Telecoms Metadata Does Not Contravene the Fourth

Three things stand out in this opinion: that collecting metadata does not conflict with the Fourth Amendment; that no telco has ever questioned the legality of the collection; and that collection can be from known and unknown terrorists.

The opinion goes into some detail over the Smith v. Maryland ruling that has for 30 years been used to rule that Americans have no expectation of privacy within their telecommunications. "In sum," it argues, "because the Application at issue here concerns only the production of call detail records or 'telephony metadata' belonging to a telephone company, and not the contents of communications, Smith v. Maryland compels the conclusion that there is no Fourth Amendment impediment to the collection."

An almost universal acceptance of Smith v. Maryland spreads beyond the court. "To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order," Eagan wrote. "Indeed, no recipient of any Section 215 Order has challenged the legality of such an order, despite the mechanism for doing so."

Whether the telcos' quiet acquiescence is a reflection of legal advice saying there is no point, or whether (as seems to be implied by some of Edward Snowdens' leaks) that there is a long-term relationship between telcos and intelligence agencies is a moot point. Nevertheless, the Guardian points out that "Telecommunications company acquiescence to the bulk phone records collection orders... contrasts with the protestations of some internet companies regarding their relationship with the NSA." Yahoo in particular is asking the court to disclose details of a 2008 incident "in which it refused to comply with bulk NSA surveillance until the court demanded it turn over customer data."

Over whose metadata can be collected, the court argues that pre-PATRIOT requirements for the production of similar material (eg, for a criminal investigation) have a higher threshold than PATRIOT requirements, and that therefore "Congress intended this Court to apply a different, and in specific respects lower, standard" for Section 215 applications. 

From this basis it follows, as the Washington Post explains, "The gathering of 'all call detail records' from phone companies is justified as long as the government can show that it is relevant to an authorized investigation into known — and, significantly — unknown terrorists who may be in the United States." 

The inclusion of 'unknown terrorists' is what justifies the indiscriminate collection of metadata. "The bottom line is this," a senior Justice Department official told WP: "You have to have this larger body of data to find the needles in the haystack.”

Judge Eagen's 'opinion' has been called 'unpersuasive' by the ACLU's deputy legal director Jameel Jaffer. "Its Fourth Amendment analysis," he says in a statement issued yesterday, "fails even to mention the landmark privacy case decided by the Supreme Court last year, U.S. v. Jones. On the whole, the opinion only confirms the folly of entrusting Americans’ privacy rights to a court that meets in secret and hears argument only from the government."

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