Call Database Legal Rationale to be Released Today: LA Times

The Los Angeles Times reports this morning, 7/31/13, that the Obama Administration has declassified the order of the Foreign Intelligence Surveillance Court which authorized the collection of call data records or “metadata” on a large scale.  Time reporter Ken Dilanian writes:

The now-declassified order is expected to be made public Wednesday when Deputy Atty. Gen. James Cole, NSA Deputy Director John Inglis and other officials are to appear before the Senate Judiciary Committee.

This order is expected to show the reasoning for determining that “records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities,” the standard required by Section 1861 of the Foreign Intelligence Surveillance Act (FISA), as codified, sometimes erroneously referred to as Section 215 of the USA PATRIOT Act or “the Library Provision.”  That “in accordance with subsection (a)(2)” language in the preceding sentence requires that:

“(2) An investigation conducted under this section shall—

“(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and

“(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.

The underlying basis for the legality of this entire section of FISA is the “third party records doctrine” which was upheld just yesterday by the first U.S. Court of Appeals to reach the issue of the Constitutionality of collecting historical cell tower (geo-location) data in the hands of service providers.  That ruling is reported today in the New York Times:

Ruling 2 to 1, the court said a warrantless search was “not per se unconstitutional” because location data was “clearly a business record” and therefore not protected by the Fourth Amendment.

The case is in re Application of the United States of America for Historical Cell Site Data, with the full text here.

In short, the third party records doctrine is long-standing precedent of the Supreme Court that business records concerning you created and held by third parties such as banks, bakeries, and telephone companies are their records, not yours, and that you therefore have no Constitutionally protected reasonable expectation of privacy in those records.  Note, that this Constitutional doctrine does not apply to real-time (prospective) acquisition by the government of the contents of communications, and that statutes such as the Stored Communications Act protect the contents of communications collected retrospectively.  At issue in what is being released today and in yesterday’s court ruling is “metadata” only, such as the time, duration, and location of a telephone call.

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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

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. She is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. 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

Anna Maria Castillois 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