Privacy Law

Surveillance court redefined 'relevant' and special-needs doctrine to permit broad data collection

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A special surveillance court of 11 judges appointed by Chief Justice John G. Roberts Jr. has issued a series of secret rulings that give the National Security Agency authority to collect large amounts of data in investigations of terrorism and other crimes affecting national security.

The classified rulings define the word “relevant” and expand the special-needs doctrine, report the Wall Street Journal (sub. req.) and the New York Times. The newspaper stories are are based on interviews with unnamed officials who are familiar with the decisions.

The Wall Street Journal says the Foreign Intelligence Surveillance Court has broadened the definition of the word “relevant” to permit the NSA to collect entire databases of phone records showing numbers dialed and length of the calls.

The Patriot Act allows the government to obtain “tangible things” such as business records in terrorism probes as long as they are “relevant to an authorized investigation.” The surveillance court’s interpretation of “relevant” is broader than the meaning used in criminal cases, the Wall Street Journal says.

Meanwhile, the New York Times says the court has also expanded the special-needs doctrine, established by a 1989 Supreme Court decision allowing the drug testing of railway workers. The Supreme Court had reasoned in 1989 that the privacy intrusion was outweighed by the possible danger to the public. The reasoning has been used to justify airport screenings and drunken-driving checkpoints.

The Foreign Intelligence Surveillance Court applied the special-needs concept more broadly to allow NSA collection of communications to combat terrorism, the Times says. According to the newspaper, the surveillance court “has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come.”

The Times also says rulings on the meaning of “foreign intelligence” have allowed greater collection of data in probes of nuclear proliferation, cyberattacks and espionage.

Related coverage:

Washington Post: “Agreements with private companies protect U.S. access to cables’ data for surveillance”

Prior coverage: “Is US perusing millions of phone records? Secret court order reveals ‘massive scale’ data collection”

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