For the first time, the United States’ most secret court, the Foreign Intelligence Surveillance Court (FISC), has published its legal rationale as to why the telecom metadata sharing program under Section 215 of the PATRIOT Act is legitimate. The 46-page opinion was authored August 29, 2013, but was not published on the FISC’s website until Tuesday.
The opinion was only now published due to FISC judge Reggie Walton, who ordered the government to conduct a declassification review of such decisions and related orders in the wake of the leaks provided by former NSA contractor Edward Snowden. As a result, this August 2013 order and two others have now been declassified. Walton's declassification order was made at the request of Judge Claire Eagan, who herself authored those opinions.
In her opinion (PDF), Judge Eagan wrote that because terrorists use phones (or in legal-speak: “telephonic systems”) and some of those phones traverse the United States’ phone network, metadata is therefore considered the business records of the telecoms involved.
In 1976, the Supreme Court ruled in a landmark case, known as Smith v. Maryland, that when someone calls a telephone number, that number has been disclosed to a third party (the phone company). Therefore, the Supreme Court held, it is not private (because it was disclosed through the act of making the call), and the government can have easy access to those call records—this is the origin of the "third-party doctrine." So, Judge Eagan concluded, if the handover of one person's phone records in one instance is legal, so too is the wholesale handover of phone metadata en masse.
"It's just showing that [the Department of Justice] is continuing its pattern of if you give them an inch they'll take a mile," Kurt Opsahl, a staff attorney at the Electronic Frontier Foundation, told Ars. "They've relied so heavily on [the Smith decision] that if Smith were narrowed [by a future court], then they would have to redo the analysis of this and a lot of the other bulk collection programs."
It’s just metadata!
As Judge Eagan wrote:
The telephone user, having conveyed this information to a telephone company that retains the information in the ordinary course of business, assumes the risk that the company will provide that information to the government. Thus, the Supreme Court conclude that a person does not have a legitimate expectation of privacy in telephone numbers dialed, and there, when the government obtained that dialing information, it "was not a ‘search,'’’ and no warrant was required.
. . .
Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.
In sum, because the Application at issue here concerns only the production of call detail records, or “telephony metadata” belonging to a telephone company, and not the contents of communications, Smith v. Maryland compels the conclusion that there is no Fourth Amendment impediment to the collection. Furthermore, for the reasons stated in [REDACTED] and discussed above, this Court finds that the volume of records being acquired does not alter this conclusion. Indeed, there is no legal basis for this Court to find otherwise.
The new opinion also reminds us that no telco has ever challenged the legality of such an FISC order, even though there is a legal means for them to do so. Currently, the only way that this order could be challenged would be if Verizon or another recipient of a government order did so. At present under the court’s logic, Verizon customers, or the customers of another telco, would have no standing to challenge the court’s order.
The Court clearly remains amenable to the government’s circular argument, as shown by the first brief that the Department of Justice authored to the FISC back in 2006, in which it argued that the metadata sharing program should be allowed. As that memo states: “All of the metadata collected is thus relevant, because the success of this investigative tool depends on bulk collection.”
Third-party doctrine, on the ropes?
But, should Verizon or another party challenge the FISC’s order—either to its direct appellate court, the Foreign Intelligence Surveillance Court of Review (FISCR), or the Supreme Court—it may have new legal legs to stand on given the Supreme Court’s January 2012 decision in the United States v. Jones case. In that case, the court ruled that law enforcement did not have the right to warrantlessly place a GPS tracking device on a suspect’s vehicle (but the Court disagreed as to the precise legal rationale).
Some of the justices, notably Justice Sonia Sotomayor, seemed to indicate in the Jones decision that they would be amenable to review of the entire third-party doctrine.
“More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” she wrote.