On June 5, 2013, The Guardian published a FISC Order leaked by Snowden that was dated April 25, 2013 and directed Verizon Business Network Services, Inc. to provide records of its “telephony metadata” for all calls between the United States and foreign countries and wholly within the United States to the NSA on an ongoing daily basis through July 13, 2013. Subsequently, in response to a government application for an order to a telecommunications provider for the bulk production of metadata, Judge Claire V. Eagan of the FISC held an “extensive hearing” on July 18, 2013, at which she heard oral argument from Department of Justice attorneys and received sworn testimony from FBI and NSA officials. On the basis of this ex parte proceeding, the judge issued a Primary Order on July 19 granting the government’s application and an opinion on August 22 explaining her reasons for dismissing the Constitutional and statutory challenges to the telephony metadata program. The footnotes in the August 22 opinion were renumbered in the August 29 opinion that was published, with redactions, on September 17, after Judge Eagan requested publication due to “the public interest in this matter.” Amended Memorandum Opinion, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things From [Redacted], Docket Number: BR 13-109, 2013 WL 5741573 (FISC Aug. 29, 2013) (the “Opinion”). See also Order, In re Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, Docket Number: BR 13-109 (FISC Sept. 17, 2013) (ordering the publication of Judge Eagan’s opinion).
The Opinion disposed of Fourth Amendment challenges on the ground that the constitutionality of the telephony metadata program was “squarely controlled” by the United States Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979). Here, Judge Eagan relied on a previous FISC decision, all identifying information about which was redacted from her published opinion, to reason that the difference in scale between the NSA’s bulk collection of metadata and the collection of numbers dialed from a single phone in Smith was constitutionally irrelevant. (Subsequently, the previous FISC opinion was revealed to be the FISC’s initial opinion authorizing the electronic communications metadata program, issued by Judge Colleen Kollar-Kotelly in PR/IT 04-88 on July 14, 2004. The Opinion was released by the Director of National Intellligence (“DNI”) on November 18, 2013, and is discussed in our post, “The Electronic Communications Metadata Program.”) Judge Eagan did not consider whether the concurrences of United States Supreme Court Justices Alito and Sotomayor in United States v. Jones, 565 U.S. _.132 S. Ct. 945 (2012) cast doubt on her reasons for finding that the scale of the collection was Constitutionally irrelevant. (for discussion of Smith v. Maryland and United States v. Jones, see Adina Schwartz, “The NSA’s Surveillance of Metadata.”)
The Opinion also rejected the argument that the collection of metadata on virtually all telephone conversations in the United States could not satisfy the requirement, in Section 215 of the Patriot Act, that the records sought be “relevant to an authorized investigation.” Here, Judge Eagan stressed that the statute only required “reasonable grounds to believe” that the records sought were relevant, and relied on a FISC opinion from 2010, the title and docket number of which were redacted from her published opinion. “Indeed, in [redacted] this Court noted that bulk collections such as these are ‘necessary to identify the much smaller number of [international terrorist] communications.’ [redacted] As a result, it is this showing of necessity that led the Court to find that ‘the entire mass of collected metadata is relevant to investigating [international terrorist groups] and affiliated persons.’”
In affirming the legality of the telephony metadata program, Judge Eagan also held that orders for the production of telephony metadata were properly governed by Section 215 of the Patriot Act, rather than by the requirements in 18 U.S.C. Sec. 2703(d) of the Stored Communications Act. Here, Judge Eagan noted that in order to obtain records from telecommunications providers under Sec. 2703(d), the government must provide the court with “specific and articulable facts showing that there are reasonable grounds to believe that … the records or other information sought, are relevant and material to an ongoing criminal investigation.” By contrast, “Section 215 … requires neither ‘specific and articulable’ facts nor does it require that the information be ‘material.’” At 13. On the one hand, Judge Eagan reasoned that the difference in showings “comports well with the Fourth Amendment concept that the required factual predicate for obtaining information in a case of special needs, such as national security, can be lower than for use of the same investigative measures for an ordinary criminal investigation.” At 17. On the other hand, she suggested that the differences in showings was mitigated by the “enhanced process” that Section 215 of the Patriot Act, 50 U.S.C. Sec. 1861, provides for challenging production orders, stating that 50 U.S.C. Sec. 1861(f) “contemplates a substantial and engaging adversarial process to test the legality of this Court’s Orders under Section 215.” At 15.
Judge Eagan’s claim about the adversarial nature of Section 215’s procedure for challenges fit oddly with her statement that, “To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.” At 15-16. The judge did not consider whether the reason for the lack of challenges was that third party record holders tend to be less motivated to challenge court orders than those whose records are sought. Cf. United States v. Miller, 425 U.S. 435, 451 (1976) (Brennan, J., dissenting) (“It is not the right of privacy of the bank but of the petitioner which is at issue, and thus it would be untenable to conclude that the bank, a neutral entity with no significant interest in the matter, may validly consent to an invasion of its depositors’ rights.” (quoting Burrows v. Superior Court, 529 P. 2d 590 (1974)).
It should be noted, however, that contrary to Judge Eagan’s statement about the absence of legal challenges, on May 14, 2014, the Office of the Director of National Intelligence and the Department of Justice released documents showing that a telecommunications provider had questioned the legality of the telephony metadata program in 2009-2010. The provider, which ultimately decided not to file a formal challenge with the FISC, was revealed to be Sprint by The Washington Post on May 14, 2015.
After Judge Eagan’s decision, Verizon brought a challenge , which FISC Judge Rosemary Collyer rejected, to the January 3, 2014 reauthorization of the telephony metadata program.
See our posts on the Verizon and Sprint challenges.