An August 29th opinion by the Foreign Intelligence Surveillance Court (FISC) upheld the legality of the National Security Agency’s (NSA) practice of gathering U.S. citizen phone records (call data records or telephony metadata) in support of authorized investigations to protect against international terrorism and concerning various international terrorist organizations. The opinion was recently declassified and provides the public with access to the Court’s reasoning for its decision.
The Court first addressed the Fourth Amendment issue (protecting against unreasonable search and seizure) by looking to a number of prior Court decisions. Citing a former redacted FISC opinion, the Court stated, “[T]he application of the Fourth Amendment depends on the government’s intruding into some individual’s reasonable expectation of privacy.”
Next, the FISA Court looked to a U.S. Supreme Court decision (Smith v. Maryland, 442 U.S. 735 (1979)) where the government obtained metadata from a telephone company of one person who was suspected of a crime. In that case, the Supreme Court found there was no legitimate expectation of privacy in telephone numbers dialed; therefore, the government obtaining such data did not constitute a search and no warrant was required under the Fourth Amendment.
In this FISC case, the government was seeking daily production of certain metadata belonging to companies without specifying the number of an individual. According to the Court, so long as the reasonable expectation of privacy does not exist as to metadata, “the number of people whose communications will be subjected to the . . . surveillance is irrelevant” to the Fourth Amendment search and seizure issue. Therefore, pursuant to the above-mentioned precedent, the Court concluded there was no Fourth Amendment issue and the volume of records did not alter that conclusion.
Here, I am choosing to focus on the Court’s handling of the constitutional issue; however, the Court also spends a great deal of time addressing section 215 of the USA Patriot Act. That Act, as the Court stated, “create[s] a statutory framework” that is “designed to ensure not only that the government has access to the information it needs for authorized investigations, but also that there are protections and prohibitions in place to safeguard U.S. person information.”
Importantly, the Court found that the government’s request complied with all relevant statutory provisions. The Court’s opinion can be found here if you would like to take a closer look at either the constitutional or section 215 issue. Here, too, is an article by The Washington Post addressing, in large part, the section 215 issues, as well as an article by The New York Times covering the Court’s opinion.
10 Pingbacks