NYT: Extended Ruling by Secret Court Backs Collection of Phone Data

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

SEPT. 17, 2013

Extended Ruling by Secret Court Backs Collection of Phone Data

By CHARLIE SAVAGE

WASHINGTON -- The Foreign Intelligence Surveillance Court on Tuesday offered its most extensive public explanation for why it has allowed the government to keep records of all Americans' phone calls, releasing a previously classified opinion [1] in which it said the program was constitutional and did not violate Americans' privacy rights.

While the once-secret call log program has been periodically reapproved by the court since 2006, it has come under criticism from members of Congress of both parties and civil libertarians since its existence came to public light in June [2] after leaks by the former National Security Agency contractor Edward J. Snowden.

In a 29-page opinion [3] that quoted the N.S.A. director, Keith Alexander, as saying the leaks had caused "significant and irreversible damage" to national security, Judge Claire V. Eagan, a federal judge in the Northern District of Oklahoma, declared that the program was lawful. So, she wrote, any decision about whether to keep it was a political question, not a legal one.

"This court is mindful that this matter comes before it at a time when unprecedented disclosures have been made about this and other highly sensitive programs designed to obtain foreign intelligence information and carry out counterterrorism investigations," she wrote, adding: "In the wake of these disclosures, whether and to what extent the government seeks to continue the program discussed in this memorandum opinion is a matter for the political branches to decide."

The opinion by Judge Eagan -- a 2001 appointee of President George W. Bush who was assigned to the surveillance court by Chief Justice John G. Roberts Jr. this year [4] -- also noted that no telecommunications company had invoked its legal right to object to turning over its customers' calling records to the government.

"To date, no holder of records who has received an order to produce bulk telephony metadata has challenged the legality of such an order," she wrote.

The opinion, dated Aug. 29, was the first written since the program came to light. While other judges had routinely reauthorized the program every 90 days with only brief reiteration of the court's legal analysis, according to an official familiar with the still-classified rulings, Judge Eagan wrote the lengthier memorandum apparently for the purpose of public release.

Judge Eagan noted in her opinion that the court had previously reauthorized the program to continue for another three months on July 19 after having held an "extensive hearing to receive testimony and evidence on this matter." In a footnote, she said that only the government, and not opponents of the program, participated in the hearing, as is routine for such proceedings.

James R. Clapper, the director of national intelligence, lauded the opinion as one that "affirms that the bulk telephony metadata collection is both lawful and constitutional." In a statement, he said its release was consistent with President Obama's call "for more transparency on these valuable intelligence programs."

But Jameel Jaffer, a senior attorney at the American Civil Liberties Union, called the opinion "completely unpersuasive," criticizing it for failing to mention a landmark privacy case [5] decided by the Supreme Court last year and portraying its statutory analysis as "equally weak."

"On the whole, the opinion only confirms the folly of entrusting privacy rights to a court that hears argument only from the government," he said.

The legal analysis Judge Eagan endorsed echoes the basic arguments that the Obama administration has made in defending the program since it came to light, including in an unsigned Justice Department "white paper" [6] it released last month.

Among those arguments was that phone call metadata -- phone numbers, time and duration of calls, but not content -- is not protected by Fourth Amendment privacy rights because it does not involve eavesdropping on the content of calls.

She also agreed that the government has legal authority to collect all calling records from phone companies under a provision of the Patriot Act that allows it to obtain business records deemed "relevant" to an investigation; and that members of Congress had had an opportunity to learn how the Patriot Act was secretly being interpreted before lawmakers reauthorized the law.

The program traces its origins to one aspect of the Bush administration's expansion of surveillance outside statutory or judicial frameworks after the terrorist attacks of Sept. 11, 2001. It was later brought under the authority of the surveillance court and linked to the Patriot Act.

The security agency uses the database to perform "link analysis" seeing who may have been in contact -- directly or indirectly -- with terrorism suspects, in hopes of identifying hidden cells. Under rules imposed by the court, the agency may search for phone calls only if there is "reasonable, articulable suspicion" that the underlying phone number is linked to terrorism.

In explaining why the court had reauthorized the program, Judge Eagan said that "according to the government" there were no "compliance incidents" -- violations of the rules limiting how the database may be accessed by analysts -- in the previous three-month period.

Last week, the government released documents [7] by another judge on the Foreign Intelligence Surveillance Court related to a 2009 reprimand of the security agency for violating the rules and for misleading the court about how it was using the database. It had come to light that the agency was automatically comparing each day's fresh batch of phone data with an "alert list" of thousands of numbers its analysts had flagged, only about 10 percent of which met the standard of the court-imposed rules.

"The court is aware that in prior years there have been incidents of noncompliance with respect to N.S.A.'s handling of produced information," Judge Eagan wrote. "Through oversight by this court over a period of months, those issues were resolved."

[1] https://www.documentcloud.org/documents/791759-br13-09-primary-order.html

[2] http://www.nytimes.com/2013/06/06/us/us-secretly-collecting-logs-of-business-calls.html

[3] http://www.documentcloud.org/documents/791759-br13-09-primary-order.html

[4] http://www.nytimes.com/2013/07/26/us/politics/robertss-picks-reshaping-secret-surveillance-court.html

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

[6] https://www.documentcloud.org/documents/750210-administration-white-paper-section-215.html

[7] http://www.nytimes.com/2013/09/11/us/court-upbraided-nsa-on-its-use-of-call-log-data.html