NYT: N.S.A. Plan to Log Calls Is Renewed by Court

http://www.nytimes.com/2013/10/19/us/nsa-plan-to-log-calls-is-renewed-by-court.html

OCT. 18, 2013

N.S.A. Plan to Log Calls Is Renewed by Court

By CHARLIE SAVAGE

WASHINGTON -- The Foreign Intelligence Surveillance Court released a new legal opinion on Friday that reauthorized the once-secret National Security Agency program that keeps records of every American's phone calls. The opinion also sought to plug a hole in a similar ruling made public last month.

In the six-page opinion, [1] which was signed on Oct. 11, Judge Mary A. McLaughlin said she was personally approving for the first time the extension of the call log metadata program, which must be approved every 90 days. But she wrote that she endorsed a lengthy legal opinion written by a colleague, Judge Claire V. Eagan, who was the previous judge to approve extending it.

Judge Eagan's opinion, which was made public last month, [2] held that the N.S.A. could lawfully collect the bulk data about all Americans' calls without warrants, in part because of a 1979 case, Smith v. Maryland. [3] In that matter, the Supreme Court held that call records were not protected by the Fourth Amendment because suspects had exposed that metadata to their phone companies and had no reasonable expectation of privacy.

Judge Eagan's opinion has been criticized, in part, because she made no mention of a landmark privacy case decided by the Supreme Court in 2012. That case, United States v. Jones, held that it was unconstitutional for the police to use a G.P.S. [4] tracking device to monitor a suspect's movements without a warrant.

Although the Supreme Court decided the case on narrow grounds -- citing that the police had to trespass on the suspect's property when installing the device -- five of the nine justices separately called into question whether the 1979 precedent was valid in an era of modern technology. They suggested that the automated long-term collection of data about someone's location might raise Fourth Amendment issues even though each individual movement is disclosed to other people.

In her new opinion, Judge McLaughlin acknowledged the existence of the 2012 case but explained why she did not think it was relevant. First, she said, that case involved physical location, not communication links. And second, she said, the Supreme Court had decided the case on different grounds and did not fully consider the broader issue.

"The Supreme Court may someday revisit the third-party disclosure principle in the context of 21st-century communications technology, but that day has not arrived," so the 1979 precedent remains the controlling legal precedent, she wrote.

Brett Max Kaufman, a lawyer at the American Civil Liberties Union, criticized Judge McLaughlin for distinguishing aggregated location tracking from aggregated call records, saying that both types of data "reveal intimate details of our lives" and that the Fourth Amendment should be interpreted as protecting "against all unreasonable intrusions into Americans' privacy, however they are accomplished."

Following disclosures about the scope of N.S.A. data collection about Americans prompted by leaks from the former N.S.A. contractor Edward J. Snowden, the Foreign Intelligence Surveillance Court has been making more information public about why it approved such programs and safeguards it put in place.

Also this week, the court made public a letter to the Senate Judiciary Committee [5] by Judge Reggie B. Walton, the surveillance court's presiding judge, that sought to counter critics who have portrayed it as a rubber stamp because it hears only from the government and approves more than 99 percent of the government's requests for surveillance powers.

Judge Walton wrote that the 99 percent statistic does not reflect "substantial" interventions by the court at earlier stages; in a recent three-month period, he wrote, 24.4 percent of applications involved changes to the authority sought or requests for greater information.

[1] http://s3.documentcloud.org/documents/807390/br13-158-memo-131018.pdf

[2] http://www.nytimes.com/2013/09/18/us/opinion-by-secret-court-calls-collection-of-phone-data-legal.html

[3] http://caselaw.findlaw.com/us-supreme-court/442/735.html

[4] http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html

[5] https://www.documentcloud.org/documents/805033-chairman-leahy-with-attachment-131011.html