A Phone Company Fought the NSA — And the NSA Won

A surveillance court ordered the company to hand over its customers’ data.

National Journal
Brendan Sasso
April 25, 2014, 2:06 p.m.

An un­named phone com­pany re­cently res­isted a Na­tion­al Se­cur­ity Agency de­mand for ac­cess to its sub­scribers’ data, ac­cord­ing to court doc­u­ments de­clas­si­fied Fri­day.

But on March 20, the For­eign In­tel­li­gence Sur­veil­lance Court re­jec­ted the com­pany’s mo­tion and ordered it to con­tin­ue turn­ing the re­cords over to the NSA. The gov­ern­ment re­dac­ted the name of the com­pany and oth­er in­form­a­tion from the doc­u­ments.

It was ap­par­ently the first time any phone com­pany tried to fight the NSA’s con­tro­ver­sial mass-sur­veil­lance pro­gram. A fed­er­al judge wrote last year that no phone com­pany had res­isted the pro­gram, which the NSA claims is au­thor­ized un­der Sec­tion 215 of the Pat­ri­ot Act.

The pro­gram col­lects phone “metadata” — such as phone num­bers, call times, and call dur­a­tions — but not the con­tents of any com­mu­nic­a­tions.

Last Decem­ber, Judge Richard Le­on of the U.S. Dis­trict Court for the Dis­trict of Columbia sided with a con­ser­vat­ive act­iv­ist and ruled that the NSA’s bulk col­lec­tion of phone re­cords is un­con­sti­tu­tion­al.

“I can­not ima­gine a more ‘in­dis­crim­in­ate’ and ‘ar­bit­rary’ in­va­sion than this sys­tem­at­ic and high-tech col­lec­tion and re­ten­tion of per­son­al data on vir­tu­ally every single cit­izen for pur­poses of query­ing and ana­lyz­ing it without pri­or ju­di­cial ap­prov­al,” Judge Le­on wrote.

On Jan. 22, the un­named phone com­pany filed a pe­ti­tion with the FISC, chal­len­ging an NSA or­der it had re­cieved. The com­pany wrote that be­cause of Le­on’s rul­ing, the leg­al­ity of the NSA pro­gram is in ques­tion for the first time. Al­though the com­pany chal­lenged the or­der, it said it would con­tin­ue to com­ply with the NSA un­til the court ruled oth­er­wise.

In the 31-page rul­ing, Judge Rose­mary Colly­er of the FISC dir­ectly re­jec­ted Judge Le­on’s reas­on­ing, call­ing it “un­per­suas­ive.” Cit­ing the 1979 Su­preme Court case Smith v. Mary­land, she con­cluded that people have no Fourth Amend­ment rights over the metadata that they share with phone com­pan­ies.

“The ag­greg­ate scope of the col­lec­tion and over­all size of NSA’s data­base are im­ma­ter­i­al in as­sess­ing wheth­er any per­son’s reas­on­able ex­pect­a­tion of pri­vacy has been vi­ol­ated,” she wrote. She also noted that the FISC im­poses lim­its on how the NSA can search through and handle the phone data after it is col­lec­ted.

The NSA’s bulk col­lec­tion pro­gram is one of the most con­tro­ver­sial rev­el­a­tions from the leaks by Ed­ward Snowden. Pres­id­ent Obama has asked Con­gress to en­act le­gis­la­tion to shift the massive phone data­base out of the NSA’s hands. But for now, the agency is still col­lect­ing re­cords on mil­lions of U.S. calls.

If Con­gress doesn’t end the bulk col­lec­tion pro­gram, it looks like it’s bound for the Su­preme Court.

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