Same Old FISA Court? Thoughts on the Opinion Extending Mass Surveillance for Six More Months
The first line of the opinion issued earlier this week by the Foreign Intelligence Surveillance Court (FISA Court) reauthorizing the NSA’s mass surveillance of telephone records is telling: “‘Plus ça change, plus c’est la même chose,’ well, at least for 180 days.” The court’s observation that “the more things change, the more they stay the same” refers to the fact that its opinion allows the bulk collection of phone records one last time, through the end of November. But the court could have also been describing its disappointing business-as-usual approach to deciding how the recently passed USA Freedom Act affected this program. Bigger changes are on the horizon, but in the meantime the court reached the unsurprising conclusion that the phone records program can continue because of language in USA Freedom allowing for a six-month transition period before the Act’s stronger limitations on bulk surveillance take full effect.
Here are a few of the noteworthy things from the opinion.
- The court accepted an amicus brief. One of the most important reforms in USA Freedom is the section that directs the FISA Court to appoint an amicus curiae to argue in any case involving novel or significant interpretations of the law. However, the court hasn’t had time to select the pool of amici yet, and USA Freedom also allows the court to choose to accept briefs from individuals and organizations who submit motions. So the court decided to get the ball rolling by accepting two here, from FreedomWorks and its attorney Kenneth Cuccinelli, as well as an earlier brief from the Center for National Security Studies. Unfortunately, the court largely dismissed the arguments these groups made, giving its approach to the amici a superficial feel.
- The court says USA Freedom allows bulk collection for six months. In order to restart the bulk phone records program, the court had to confront some inconsistencies created by Congress’ failure to pass USA Freedom before the sunset of Section 215 of the Patriot Act on June 1. Because Section 215 expired, the authority the government had been using to conduct its bulk phone records surveillance ceased to exist. Meanwhile, USA Freedom provides for the six-month transition period from the pre-June 1 Section 215. Looking at Congress’ intent rather than the letter of the law, the FISA Court decided that Congress meant to pass USA Freedom before the 215 sunset and that it wanted an “orderly” transition from the government’s bulk surveillance program. Although this was not a surprising result, Judge Michael Mosman did acknowledge that courts are usually very reticent to decide Congress’ intent by looking at legislative history: “To some degree, finding legislative history for a proposition is a little like stumbling on a multi-family garage sale: if you rummage around long enough, you will find something for everybody, and none of it is worth much.”
- The court thumbs its nose at the Second Circuit’s view that bulk telephone metadata surveillance is illegal. In a landmark decision in May, the U.S. Court of Appeals for the Second Circuit found in ACLU v Clapper that mass surveillance of telephone records was never authorized by the Patriot Act. Although appellate court decisions are usually given significant weight by district courts, the FISA Court pointed out it isn’t obligated to follow the Second Circuit’s decisions and criticized reasoning in ACLU v. Clapper. Most troublingly, the court largely doubled down on the wildly expansive interpretation of the word “relevance” in Section 215 from previous FISA Court opinions. Although nothing required it to reach the same conclusion as the Second Circuit, the FISA Court’s unnecessary dismissiveness is reminiscent of some of its one-sided opinions of old. In light of the FISA Court’s opinion, the ACLU said it will ask the Second Circuit for an injunction stopping the program from going back into effect.
- Third party doctrine trumps constitutional concerns. The FISA Court also dismissed all constitutional concerns with the program as it has in the past by repeatedly citing the same outdated Supreme Court case, Smith v Maryland, that has been the bane of digital rights advocates for decades. This is a case from the 1970s that found that people who use the telephone don’t have an expectation of privacy because they are sharing the fact that they are making a phone call with the telephone company itself, and thus the government has a right to access data about what phone calls are made and to whom without a judge-issued search warrant. Because the Second Circuit found that the program wasn’t authorized by the Patriot Act, it did not reach the constitutional issue, but it indicated there were significant constitutional concerns. Even so, we’re hopeful that in one of the pending lawsuits challenging the program, including EFF’s case Smith v. Obama, ACLU v. Clapper, or Klayman v. Obama, a circuit court will disagree with the FISA Court and issue a ruling soon holding that the program is in fact unconstitutional.
Although the FISA Court reauthorized mass surveillance of phone records, it acknowledged that an end is in sight. So mark your calendars: on November 29, 2015, the court’s order will expire and mass surveillance of telephone records of all Americans should finally be over. And, pending possible decisions by another circuit court, the program could come to an end even sooner.