phone call metadata

The D.C. Circuit ruled Friday that President Obama's Justice Department can keep secret a memo that established "the legal basis for telephone companies to hand over customers’ calling records to the government without a subpoena or court order, even when there is no emergency," The New York Times reports. The memo was deemed to be subject to the executive branch's internal deliberations privilege.

The Atlantic has this piece arguing that continuing to rely upon the U.S. Supreme Court precedent in Smith v. Maryland to justify the NSA's mass surveillance of phone calls in the USA no longer makes sense. The case involved the use of a pen register to investigate a burglar-stalker who allegedly made obscene phone calls to a crime victim, and the U.S. Supreme Court ruled that "a search only occurs when a citizen has a reasonable expectation of privacy" (which in Smith was not the case for phone calls made by a burglar from his home phone), The Atlantic further reports. Smith, cited by the Southern District New York decision upholding the NSA's surveillance of telephone metadata, is out-of-date for where technology now stands: "At the time Smith v. Maryland was decided, the courts did not anticipate this seemingly absurd result [of massive surveillance], in part because the case was decided prior to the era of cheap data storage, modern computing power, and sophisticated network analysis," The Atlantic concludes.

A federal judge in New York has issued a conflicting ruling with that of a federal judge in D.C. over the legality of the National Security Agency's surveillance of nearly every phone call made in America, CNN reports: "In his ruling Friday, U.S. District Judge William Pauley said the NSA's bulk collection of phone records under Section 215 of the Patriot Act was legal. The program was revealed in classified leaks by former NSA contractor Edward Snowden."

The Washington Post reports on the recommendations of the panel, appointed by President Obama, to curb surveillance by the National Security Agency. Instead of the NSA collecting virtually all of Americans' phone records, the panel "urged that phone companies or a private third party maintain the data instead, with access granted only by a court order," The Post reports. The panel also suggested a ban on warrantless NSA searches for Americans’ phone calls and e-mails legally collected in a program at foreigners overseas, The Post further reports. The Obama administration says it will reveal proposed changes to surveillance, including taking into account the panel recommendations, next month.

While there has been a lot of celebration of Judge Leon's opinion that the National Security Agency's collection of telephone metadata likely violates the federal Constitution, Just Security's Steve Vladek argues that the district judge faces being reversed by the D.C. Circuit on his holding that the plaintiffs’ Administrative Procedure Act "claim (challenging the metadata program on statutory grounds) is precluded by section 215 itself."

The result? "Then that will bring the statutory question to the fore–for the Court of Appeals to either decide as a matter of first impression or send back to Judge Leon," Vladek writes. "And if, as many (including me) believe, the program can’t be reconciled with the statute, then we’ll end up in the same place (the program in its present form will be enjoined), without ever having to answer the thorny and far more far-reaching Fourth Amendment question concerning twenty-first century expectations of privacy in metadata."

The Wall Street Journal has this helpful Q&A about the meaning of Judge Richard Leon's ruling that the National Security Agency has probably violated the U.S. Constitution by monitoring most phone calls in the United States.

A federal judge ruled today that the National Security Agency's surveillance of most phone calls made in the United States or to the United States is likely unconstitutional, Politico reports: "U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks."

Politico further reports: "Leon’s 68-page ruling is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. The metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and at least one judge sitting in a criminal case."

The judge granted a preliminary injunction but promptly stayed it to allow for an appeal.

Yochai Benkler, law professor and director of the Berkman Center for Internet & Society at Harvard University, writes in The Guardian that a ruling in the Foreign Intelligence Surveillance Court contradicts recent jurisprudence from the U.S. Supreme Court on security and the constitutional protection from unreasonable searches and seizures. One of the most important implications of Benkler's argument is for FICA no longer to be an ex parte, completely secret court. Creating a role for an adversary to the goverment's surveillance requests has been one of the key reforms suggested for FISC. Benkler says that if FISC was adversarial that the U.S. Supreme Court's holding in United States v. Jones--that it was unconstitutional for law enforcement to place a GPS tracking device on a suspect's vehicle without a warrant-- would not have been ignored by FISC in a decision setting out "why the government's collection of records of all Americans' phone calls is constitutional."