On May 7, 2015 the United States Court of Appeals for the Second Circuit in New York issued a major ruling on the legality of the NSA’s controversial program to gather information about tens of millions of telecom users in order to search for “relevant” records relating to terrorism, espionage and foreign relations.
In the lawsuit ACLU v. Clapper, the American Civil Liberties Union challenged the government program as overbroad, unconstitutional and not authorized under the USA PATRIOT Act.
The Court agreed. Partly.
Mostly what the court said is that in granting the super secret FISA court with the authority to issue warrants for the seizure of “documents and tangible objects,” that were relevant to a terrorism or foreign espionage case, it was not the intention of Congress to authorize the Court to issue a blank check to the NSA to obtain every record of every telephone call of every person because these records MIGHT contain relevant information. It’s not that Congress couldn’t do that (the Court dodged the Constitutional issue) it’s that, according to the Court, Congress didn’t do that in the USA PATRIOT Act.
The statute in question, Section 215 of the USA PATRIOT Act authorized the government to make an application for an order requiring the production of any tangible thing (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
In its current form, the provision requires such an application to include a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) of this section to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
Such an order “may only require the production of a tangible thing if such thing can be obtained with a subpoena duces tecum issued by a court of the United States in aid of a grand jury investigation or with any other order issued by a court of the United States directing the production of records or tangible things.” Id. § 1861(c)(2)(D).
Finally, the statute requires the Attorney General to “adopt specific minimization procedures governing the retention and dissemination by the [FBI] of any tangible things, or information therein, received by the [FBI] in response to an order under this subchapter.” Id. § 1861(g)(1).
The NSA interpreted these statutes to allow them to get a Court order not just for the production of the telephone metadata of a person, or a group of people, but to get and keep the metadata of EVERYONE. Then the NSA would search the gigantic database they had created (with additional supervision, but no additional judicial intervention) for the files they wanted.
The database was “relevant” because files in the database were “relevant.” The court observed that “relevance is not an unlimited concept, and that the government’s own use (or non‐use) of the records obtained demonstrates that most of the records sought are not relevant to any particular investigation; the government does not seek the records, as is usual in a grand jury investigation, so as to review them in search of evidence bearing on a particular subject, but rather seeks the records to create a vast data bank, to be kept in reserve and queried if and when some particular set of records might be relevant to a particular investigation.”
Essentially, the Court ruled that, when Congress amended the USA PATRIOT Act to give the FISA Court the authority to demand production of “relevant” documents and objects, they never intended to change the meaning of the work “relevant” to mean, “oh, and any databases of records which we might find useful to search for stuff we want.” Thus, the Court ruled, the statute itself did not authorize the NSA “bulk metadata” collection program. If the government wants to do bulk metadata collection, it needs Congress to act.
The ruling is important because there are a lot of statutes that authorize the demand for, subpoena of, or issuance of court orders for “relevant” files or information. In none of those cases have courts permitted the subpoena or demand for billions of irrelevant bits of information in the hope that you might find “relevant” data. In other words, “relevant” means, well, relevant.
The case will undoubtedly be appealed to the Supreme Court. Until then, the New York federal court has enjoined it. No matter, the NSA can still get the data from the providers. It’s just that they get it on a case by case basis.