ACLU to fight FISA court's OK to NSA bulk data collection

FISC instructs NSA to carry on regardless. In French...

fisc nsa metadata mosman
Credit: United States Court of Appeals for the Ninth Circuit

You thought bulk metadata collection had been quashed? Think again: Despite what looked like a last-minute reprieve, the secret court set up by the Foreign Intelligence Surveillance Act (FISA) has approved the NSA to continue. Judge Michael W. Mosman says things should stay the same, despite the shifting legal landscape.

So the NSA gets another 180 days to slurp up phone records, and then it becomes the telcos' job. The American Civil Liberties Union ain't impressed, to put it midly.

In IT Blogwatch, bloggers eyeroll furiously.

curated these bloggy bits for your entertainment.
[Updated 8.54am PDT with ACLU reax.]


Charlie Savage nicely simplifies a complex legal picture:

In May the Court of Appeals for the Second Circuit, in New York, ruled...Section 215 of the Patriot Act could not legitimately be interpreted as permitting bulk collection. [And] Congress did not include language in the Freedom Act...authorizing bulk collection.

[So] FreedomWorks filed a motion in the surveillance court saying it had no legal authority to permit the program to resume. [But] Judge Michael W. Mosman of the surveillance court rejected the challenge. [He] said the Second Circuit was wrong, too.

[The ACLU] said...it would ask the United States Court of Appeals for the Second Circuit...to issue an injunction to halt the program.  MORE


And Dan Roberts tries to unravel it, too:

Congress banned the bulk collection of telephone metadata – first revealed by...Edward Snowden...in 2013 – by passing...the USA Freedom Act. ... But the legislation also proposed a six-month transition period while the NSA moves to a new system that relies on asking telephone companies for specific records.

The Foreign Intelligence Surveillance court...has been authorising regular bulk collection requests in secret on a rolling basis since 2006. ... Judge Mosman described the context of the case as “quite extraordinary,”...but he rejected arguments...that the lapse and the new...legislation should prevent the NSA simply continuing in the same way as before during the handover phase.

Mosman also ruled that in light of public interest...his normally classified ruling should be published. ... [He] seemed to revel in his audience – describing, in one case, his attempts to find supportive legal history as a “little like stumbling upon a multi-family garage sale.”  MORE


Kate Vinton also channels Judge Mosman (albeit bizarrely calling him a "Moran"):

“Plus ça change, plus c’est la même chose,” well, at least for 180 days.

The question, therefore, is whether Congress has authorized bulk acquisition of call detail records during the interim 180-day period. The Court finds that it has. ... Congress clearly intended to end bulk data collection of business records and other tangible things. But what it took away with one hand, it gave back – for a limited time – with the other.

To a considerable extent, the Second Circuit’s analysis rests on mischaracterizations of how this program works and on understandings that, if they had once been correct, have been superseded. ... It is necessary for the government to collect telephone metadata in bulk in order to find connections between known and unknown international terrorist operatives as part of authorized investigations.  MORE


So Tim Cushing pleads the Fourth:

The government's access to American phone records is never going to end completely, not as long as the government and FISA Court continue to rely on...the 1979 Smith v. Maryland decision. The FISA order refers to this decision repeatedly. ... As long as the government can rely on this large Fourth Amendment loophole, domestic surveillance...as well as subpoena and National Security letter abuse will continue. There is effectively no "endpoint".

For what it's worth, [metadata] will no longer be collected and stored by the NSA after this six-month wind-down. These records will reside with telcos and be returned only in exchange for specific searches based on "reasonable articulable suspicion."

[But] barring a Supreme Court examination of bulk domestic collections or a revisiting of the issues central to Smith v. Maryland, arguing the public's case against bulk harvesting is going to be an exercise in futility.  MORE


Meanwhile, this pseudonymous commentator does pay attention to the man behind the curtain:

The media needs to stop their narrative that leads people to infer that the phone records collection was the only intrusive, Orwellian program that the NSA is conducting.

Internet activity [is] being monitored! ... That's much more scary than the gov knowing who I call. I don't like to think of some random military dude in a red state having access to my searches relating to all things political, sexual, etc!  MORE


Update: Lauren Walker channels ACLU deputy legal director Jameel Jaffer:

Neither the statute nor the Constitution permits the government to subject millions of innocent people to this kind of intrusive surveillance.

We intend to ask the Second Circuit Court of Appeals to prohibit the surveillance and to order the NSA to purge the records it has already collected.  MORE


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