Intelligence Court Shrugs at Ruling Against Mass Surveillance, Temporarily Restores NSA Authority for Metadata Collection

A few more months of privacy violations permitted.


It doesn't work and everybody hates it. Keep it up!

The USA Freedom Act, passed at the start of June, ends the National Security Agency's (NSA) practice of mass collection of Americans' phone records under one section of the PATRIOT Act, a process that was being kept secret from us until it was exposed by Edward Snowden.

The section of the PATRIOT Act that had allegedly authorized such metadata collection ("allegedly" is used here because the legislator who wrote the Act said he intended no such thing) expired at the end of May. It was not renewed. Instead the USA Freedom Act was put into place.

But the Freedom Act gave the NSA six months to implement a new method of collecting data that calls for the use of specific search terms and from gathering the records from the telecom companies. It does not allow the NSA to just snatch up everybody's phone records anymore. So what kind of record collection authority does the NSA have in the meantime?

Actually, the NSA has all sorts of other authorities to collect records, but we're referring specifically to what the Freedom Act authorizes in the place of Section 215 of the PATRIOT Act. In this six-month gap, what sort of records can the NSA gather?

Oh, also, a federal court ruled that Section 215 actually never authorized mass telephone metadata collection in the first place. So … where do things stand?

Despite supporting the passage of the USA Freedom Act and applauding the new, more restrictive rules, the Obama administration immediately turned around and asked the Foreign Intelligence Surveillance Court (FISC) to allow it to continue during the authorized transition period. So, even though the administration, Congress, and the judicial branches have all agreed this must stop, they nevertheless want to continue it for a few months.

And so FISC ruled: Sure, why not? From Reuters:

The Freedom Act also allowed the existing surveillance program to continue for a six-month transition period, but it remained in legal limbo pending Monday's ruling by a judge of the Foreign Intelligence Surveillance Court.

"In passing the USA Freedom Act, Congress clearly intended to end bulk data collection … But what it took away with one hand, it gave back—for a limited time—with another," wrote Michael Mosman, a judge on the surveillance court.

In his ruling, first reported by the New York Times, Mosman rejected the May ruling by the 2nd U.S. Circuit Court of Appeals in Manhattan that the Patriot Act had never authorized the NSA to collect Americans' phone records in bulk.

"Second Circuit rulings are not binding on the F.I.S.C. and this court respectfully disagrees with that court's analysis, especially in view of the intervening enactment of the U.S.A. Freedom Act," he wrote.

As a bit of a silver lining, the court did agree to allow Ken Cuccinnelli, former Virginia attorney general, through advocacy group FreedomWorks, to submit amicus curae briefs to the court on this matter. One of the less publicized parts of the USA Freedom Act is that it implemented a system where the secretive, non-adversarial system of FISC would allow for independent third parties to advocate to the court in defense of civil liberties of citizens.

Whether or not the court would listen to such parties is another matter. The response from FISC here brushing off a federal court ruling does not bode well. Read the full ruling here. (pdf)

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  1. And what are the chances that, after the six months is up, they’re not going to keep doing it anyways? Is it any higher than zero?

    Anyways, this is, of course, why Rand was right to keep fighting this to the end. Because anyone could see it was bullshit and wasn’t going to solve anything.

    1. Unless they face no consequences for breaking the law, then they’re going to ignore it.

      1. Unless As long as

        1. But they’re not breaking the law. At least not their interpretation of the law, and really, who’s to say whether or not the NSA is mistaken in their assertion that “thou shalt not” means “do whatever the hell you want”?

          1. I’m pretty sure Roberts would agree that, regardless of what the legislators who passed the bill say about their intention, and regardless of what the statute actually says, the important thing is whether the Court can help an administrative agency do what it wants, regardless.

    2. The Freedom Act dramatics was nothing but an act.

      A warning bell should have been rung when the NSA itself supported it while not a single civil liberties organization supported it (most likely because nobody could understand what the hell it did or did not allow).

  2. I’m willing to bet that another 6 month extension will be passed right before Congress goes on Thanksgiving recess…

    I wouldn’t call the 2nd Circuit statement anything but an advisory opinion; the court didn’t actually ORDER anything. (“Hey NSA, what’s up? So we do think you’re most likely not explicitly allowed to collect metadata… at least not under Section 215 [*wink*]. But, because of the children, we are not actually going to order you to stop doing so because God forbid we get in the way of whatever the hell Congress is doing [ha!].”)

    1. Which begs the question of why the hell the courts won’t do their job. It’s not to bow to the legislatures. It’s to uphold the god damn constitution.

      1. The courts are *part* of the Federal government. They will almost never limit federal power because to do so would be to limit their own power.

  3. Seriously, I love how Congress passed an extension of a program that — according to a 2nd Circuit advisory opinion — wasn’t actually authorized by anything. Does the extension mean it is actually authorized by statute now? If so, which one?

    1. Just because one branch or even two branches authorizes the illegal acts of the third branch doesn’t make the illegal act legal. It just means all three branches are acting illegally.

    2. Well, first you would have to explain how Congress could authorize a general warrant when those are explicitly prohibited by the Constitution.

  4. Thank you all for coming. I have a brief statement:


    Thank you. No questions will be taken at this time.

    1. Briefer statement:


      You can all feel free to blow me at this time.

      1. What’s screwed up is how many of us look to the government to stop the government. “Oh, please, Mr. Government Man, please let some of us gay marry. Please.”

        Our rights are our rights. The government can illegitimately and illegally infringe on our rights, but that doesn’t make it right or make it legitimate.

  5. We need to get over the fact that they’re going to do it. they’re going to do it with or without a fig leaf of court approval. So encrypt everything and don’t talk to the cops. And if you’re really doing something you think will attract serious attention, learn tradecraft, because an app won’t save you.

    1. Tradecraft? Is that like minecraft? You kids with your interwebz. *shakes fist*

  6. How the hell did Reason get their mitts on this information on what the government is up to? Isn’t all this shit super-duper-double-secret classified information that absolutely nobody is allowed to see? It’s none of your goddamn business what the government is doing to keep you safe from the muslin tourists. Subpoenas and gag orders for everybody!

    1. muslin tourists

      So soft… so supple…

      1. I must admit, as a ’68-era Detroit Tigers fan, I was quite disappointed to find out that Al Kaline was the leader of the muslin tourists.

    2. Oh, and “the secretive, non-adversarial system of FISC”? The reason it’s “non-adversial” is because the FISA Courts themselves are supposed to be the adversaries. Kind of the way the police, in order to obtain a warrant, have to convince a neutral third-party magistrate that probable cause for the warrant exists or a prosecutor, in order to obtain an indictment, has to convince a grand jury that a reasonable belief exists that an indictment is called for. As much as the fact that the FISA Courts have never seen a warrant they didn’t like has been publicized, do you have any idea how many warrant applications are rejected or how many no-true-bills are returned in your particular county or city or state? I suspect it’s not far off the FISC standard. There should be a word or phrase for the condition whereby a regulatory body becomes advocates and apologists and enablers for the very entities they’re charged with keeping an eye on.

      1. There should be a word or phrase for the condition whereby a regulatory body becomes advocates and apologists and enablers for the very entities they’re charged with keeping an eye on.


        1. That was the word I was thinking.

          The phrase is “Bidness as usual”

  7. Welcome to rule of man, folks. Because this is what it looks like when the farce of rule of law is finally exposed. They’ve had enough of pretending to follow “the rules” for the sake of the public. They’re sick of it. And they’ve got enough power to say “fuck you, that’s why” to our faces and get away with it. So they are. Because they can.

    1. ^This is exactly where we are now. The question is, what are we going to do about it? Does the general tendency of man require a revolutionary war ever 200 years or so? It would appear the evidence is – why yes, that is what it would take to make meaningful changes.

      1. “every 200….”

      2. Nothing says rule of law like a revolution.

        Bear in mind that while the early USAsians did need to stand up a central power structure, the actual conflict was a group of states against another state, so it was a conflict between two established systems of law. A popular revolt will not have that benefit.

        Having everyone move to some liberty-friendly states and then pressuring those states to secede (and fighting a war for independence, which could itself possibly be avoided if they got control of nukes located there) would be much more likely than popular insurrection to result in an improvement in rule of law rather than a descent in Jacobin terror.

      3. The question is, what are we going to do about it?

        Try to avoid the eye of the Total State.

        See if I can figure out how to make a little money off of it, without selling my soul.

        Build some reserves so that if/when our unsustainable system collapses, I don’t starve.

        Seriously, I think that’s about all anyone can do at this point. The only restrictions on the Total State now are mostly decorative. The only way the Total State is going to get reined in is through its own internal collapse.

    2. Honestly, they’re only saying it to our faces, because I think a majority of people either fall into the “I support this, because TERROR” camp or the “Uh, they’re doing what? Is that bad?” camp.

      I wish someone would remind the “The Constitution is not a suicide pact!” crowd that religious nutjobs (sorry, eddie) were trying to blow up buildings (even, or especially, key government buildings) as early as the 16th century. It was a possibility that was taken into account.

      1. I wonder, what percentage of people who wear Guy Fawkes masks know (i) Who he was, (ii) What what he tried to do, and (iii) Why he wanted to do it.

        1. Roughly five percent I’d wager.

          1. Nah now that I think about it it’s probably more like a half percent.

  8. “… would allow for independent third parties to advocate to the court in defense of civil liberties of citizens.”

    In what kind of backward banana republic would you need independent third parties to advocate for – forget it. I already know the answer.

    1. Because humans.

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