President Obama’s limits on telephony metadata queries

In a speech on January 17, 2014, President Obama proposed that except in emergency situations, telephony metadata be queried only after a judicial determination that there was a reasonable, articulable suspicion (“RAS”) that the selection term was associated with an international terrorist organization. The President further directed that queries only extend to metadata within two, rather than the previous three, hops of the selection term.

On February 5, 2014, the FISC granted the government’s motion to put these changes into effect by amending its January 3, 2014 order reauthorizing the telephony metadata program. On February 12, after the government completed a declassification review, the FISC released a lightly redacted version of FISC Judge Reggie B. Walton’s February 5 Order granting the government’s motion.

In his Order, Judge Walton reasoned that both of the government’s proposed changes bore directly on the requirement, in 50 U.S.C. Sec. 1861(g)(2)(A), that government applications for orders directing the production of tangible things contain procedures “reasonably designed … to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce and disseminate foreign intelligence information ….” Judge Walton found “no difficulty concluding” that in addition to enhancing the protection of information about United States persons, the reduction from two to three hops was consistent with the United States’ need for foreign intelligence information. According to the Judge, “identifiers that are three steps removed from a RAS-approved selection term are less likely to have a connection to international terrorism than those that are more closely connected to the seed identifier.” At 6.

Turning to the government’s proposal that, except in emergency situations, the FISC make prior determinations that selector terms met the RAS standard, Judge Walton asserted that under Smith v. Maryland, Fourth Amendment protections do not extend to the government’s acquisition or use of telephony metadata. Relying on the reasoning, in regard to the wisdom of the warrant requirement, in Johnson v. United States, 333 U.S. 10, 13-14 (1948), he nonetheless claimed that “[h]aving a disinterested judicial officer determine whether each selection term has the requisite connection to international terrorism can reasonably be expected to minimize the risk of erroneous queries and the attendant risk that United States person-information will be accessed or disseminated without adequate justification.” Id. Despite recognizing this likely benefit, Judge Walton went on to make clear that granting the government’s request that it pre-approve selector terms was an exercise of the FISC’s discretion. “The Executive Branch, of course, cannot unilaterally compel the FISC, an Article III court, to assume the RAS-approval function, and the FISC would be within its discretion under FISA to reject this aspect of the Motion.” At 7. After noting that changes in the telephony metadata program might result from ongoing review by the Executive and Legislative branches, Judge Walton ruled that the FISC would comply with the government’s request, “[p]rovided that the number of selectors used to query the metadata remains relatively close to the present level.” At 8-9.

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