29 June 2015, FISC: In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things; In re Motion in Opposition to Government's Request to Resume Bulk Data Collection Under PATRIOT Act Section 215 (Opinion and Order) (PDF)

3 June 2015, Guardian: Congress passes NSA surveillance reform in vindication for Snowden

3 June 2015, Guardian: Back from the dead: US officials to ask secret court to revive NSA surveillance

Secret court approves NSA bulk collection one last time: 'Plus ca change ...'

Fisa court judge issues final authorisation to programme banned after Congress banned bulk collection of telephone data in the USA Freedom Act

Dan Roberts in Washington

30 June 2015

After a decade in the shadows, a secretive surveillance court that authorises the bulk collection of American telephone records seized on its last chance to show off a little personality on Tuesday.

"Plus ca change, plus c'est la meme chose, well, at least for 180 days," wrote judge Michael Mosman in an unusually colourful, and public, ruling that granted an extension to the programme [1] one last time.

Congress banned the bulk collection of telephone metadata -- first revealed by National Security Agency whistleblower Edward Snowden in the Guardian in 2013 -- by passing sweeping NSA reforms in the USA Freedom Act [2] earlier this month.

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 rather than maintaining a central government database.

On Tuesday, the Foreign Intelligence Surveillance court (Fisc), which has been authorising regular bulk collection requests in secret on a rolling basis since 2006, agreed to this request first made by the government just hours after passage of the reform bill. [3]

Judge Mosman described the context of the case as "quite extraordinary", particularly as government authority lapsed entirely for a few days during congressional wrangling over whether to pass the USA Freedom Act reforms.

But he rejected arguments put forward by civil liberties groups that the lapse and the new constraints of the legislation should prevent the NSA simply continuing in the same way as before during the handover phase.

"In passing the USA Freedom Act, 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," wrote Mosman.

"Congress could have prohibited bulk data collection ... immediately upon enactment of the USA Freedom Act," he added. "Instead, after lengthy public debate, and with crystal-clear knowledge of the fact of ongoing bulk collection of call detail records ... it chose to allow a 180-day transitional period during which such collection could continue."

Mosman also ruled that in light of public interest in the case, his normally classified ruling should be published.

The private documents leaked by Snowden suggest a normally dry legal tone for such rulings, but the judge 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: if you rummage around long enough, you will find something for everybody, and none of it is worth much".