FISA Court Releases Declassified Order Upholding NSA Phone Program

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.

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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.

 

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4 Responses to “FISA Court Releases Declassified Order Upholding NSA Phone Program”

  1. […] The court referenced The Honorable Claire V. Eagan’s primary order and amended memorandum opinion from July 19 and August 29, respectively.  Specifically, FISC stated that, under the most recent FBI application, the information sought and the terms upon which call orders were to be produced would be identical in scope and nature, and obtained for the same purpose as the records obtained under Judge Eagan’s earlier order. […]

  2. […] As discussed in Judge Eagan’s opinion, the FISA Court determined that the production of call detail records such as those requested by the FBI does not constitute a “search” under Smith v. Maryland (442 U.S. 735 (1979)), rendering the Fourth Amendment inapplicable to this case. […]

  3. […] FISA Court Releases Classified Order Upholding NSA Program […]

  4. […] pursuant to Foreign Intelligence Surveillance Court (FISC) orders (here are some examples from Judges Eagan and McLaughlin with links to the opinions); and, (3) finding that Plaintiffs’ had standing to […]

Authors

Untitled Document
Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic.Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

is 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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