Privacy Law

Surveillance court releases new opinion upholding NSA collection of phone data


The Foreign Intelligence Surveillance Court has released an opinion upholding the constitutionality of the phone data collection program by the National Security Agency.

The opinion, dated Aug. 29 and written by U.S. District Judge Claire Eagan of the Northern District of Oklahoma, said metadata that includes phone numbers, time and duration of calls is not protected by the Fourth Amendment, since the content of the calls is not accessed. The New York Times and the Washington Post have stories.

The opinion cited the 1979 U.S. Supreme Court case Smith v. Maryland, in which the court ruled against a crime suspect challenging the use of a pen register to capture information about calls made. “Where one individual does not have a Fourth Amendment interest,” Eagan said, “grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.”

Eagan also said the data collection is authorized under Section 215 of the Patriot Act that allows the FBI to issue orders to produce “tangible things” if there are reasonable grounds to believe the records are relevant to a terrorism investigation. “The government need not provide specific and articulable facts, demonstrate any connection to a particular suspect, nor show materiality when requesting business records under Section 215,” Eagan said.

A previous Justice Department white paper had also used the court’s reasoning, but Eagan went a step further when she said the government could collect the information for probes of “unknown” as well as known terrorists, the Post says.

An official familiar with prior rulings by the court told the Times that other judges had routinely reauthorized the data collection program every 90 days, but Eagan apparently wrote the longer opinion for public release.

Last week the government released a 2009 opinion by the surveillance court that found the NSA had “systematically violated” safeguards for the phone surveillance program. Eagan said issues have been resolved because of oversight by the court.

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