The NSA has been authorized to resume bulk collection of American phone records while expired Patriot Act provisions give way to modified data collection practices under the USA Freedom Act.
According to an order on Monday by the Foreign Intelligence Surveillance Court, the federal government’s request to renew dragnet data collection of U.S. phone metadata until November 29, 2015 was approved. As the Freedom Act reportedly prepares to implement limitations regarding some aspects of NSA surveillance, the legislation provides a “transition period” in which the NSA will be allowed to temporarily continue its controversial data collection practices that a federal appeals court had declared illegal in May.
[RELATED: Federal Appeals Court Ruling: NSA Data Collection Is Illegal]
“This application presents the question whether the recently-enacted USA FREEDOM Act, in amending Title V of FISA, ended the bulk collection of telephone metadata. The short answer is yes. But in doing so, Congress deliberately carved out a 180-day period following the date of enactment in which such collection was specifically authorized. For this reason, the Court approves the application in this case,” stated the order.
The Department of Justice had filed a request in June seeking to continue bulk data collection. The request, written by Justice Department national security chief John Carlin, cited the Freedom Act’s “orderly transition” clause and appeared to be asking FISA to ignore the May appeals court ruling.
[RELATED: DoJ Asks Surveillance Court To Ignore Federal Court’s Ruling On Illegal NSA Spying]
“The Second Circuit’s recent panel opinion in ACLU v. Clapper, No. 14-42 (2d Cir. May 7, 2015) does not bar this Court from authorizing the production in bulk of call 6 detail records, notwithstanding its holding that Section 1861 does not authorize the bulk production of call detail records,” Carlin wrote in the June 2 request.
The USA Freedom Act has passed the United States House of Representatives overwhelmingly with 338 votes in favor and 88 against. It now moves to the U.S. Senate.
Congressman Justin Amash, who has the strongest voting record in Congress on Constitutional issues, was one of the 88 votes against the “Freedom Act.” On his Facebook page, Amash explains why he voted the way he did. In part, he writes:
The bill’s sponsors, and unfortunately some outside advocacy groups, wrongly claim that H.R. 2048 ends “bulk” collection. It’s true that the bill ends the phone dragnet as we currently know it—by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold—but H.R. 2048 actually expands the statutory basis for the large-scale collection of most data.
H.R. 2048 does this by authorizing the government to order the production of records based upon a “specific selection term” (i.e., like a search term used in a search engine). The records sought still must be relevant to an investigation, so it’s possible the court’s ruling will continue to restrain the government in some fashion. But it’s more likely a court looking at H.R. 2048’s language will see the “specific selection term” as defining the outer limits of what Congress considers acceptably “relevant” under Section 215.- Rep. Justin Amash (R) MI
Proponents of the bill say that under the USA Freedom Act, the NSA would be prohibited from collecting telephone metadata under the Patriot Act. Instead, the agency would have to acquire a warrant every time it wanted to access phone records, which would be held by telephone companies. Officials would need to submit data requests via keywords in order to collect relevant data from companies.
The bill would also reform the Foreign Intelligence Surveillance Court (FISA Court) by setting up a five-person panel that would offer advise when intelligence agencies are seeking new interpretations of existing law. Some court rulings would need to be declassified.