Reauthorization of the NSA telephony metadata program in June 2014

On June 19, the FISC approved the government’s application for a further reauthorization of the telephony metadata program until September 12, 2014. A Joint Statement from the Office of the Director of National Intelligence and the Department of Justice on June 20 announced that the Obama administration “strongly supports” the USA Freedom Act, H.R. 3361, which was enacted by the House of Representatives in May 2014 and “create[s] a new mechanism for the government to obtain … telephony metadata pursuant to individual orders from the FISC, rather than in bulk.” According to the Joint Statement, the Administration “urge[s] the Senate to swiftly consider [the USA Freedom Act], and remain[s] ready to work with Congress to clarify that the bill prohibits bulk collection ….” Nonetheless, “given the importance of maintaining the capabilities of the Section 215 telephony metadata program, the government has sought a 90-day reauthorization of the existing program,” subject to the limitations on the collection of metadata that the FISC approved in February in response to President Obama’s request.

Pursuant to an Order directing declassification and publication, a redacted version of FISC Judge James B. Zagel’s Memorandum Opinion and Primary Order reauthorizing the telephony metadata program on June 19 was posted on the FISC’s website on June 27. In the opinion, Judge Zagel “fully agree[d] with and adopt[ed] the constitutional and statutory analyses” in FISC Judges Eagan’s and McLaughlin’s opinions of August 29 and October 11, 2013. At 3. Summarizing the legal developments since those opinions, Judge Zagel found that the February 5, 2014 amendment to the telephony metadata program, provided “enhanced protections for the bulk telephony metadata” by limiting queries to two “hops” and requiring the FISC to find reasonable articulable suspicion that selection terms are associated with international terrorist organizations. At 8. Ignoring the government lack of candor in the litigation that led to the March 12, 2014 amendment the judge insinuated that the amendment does not seriously constrict individual rights because it allows metadata to be retained beyond five years for “the sole purpose of [the government’s] meeting preservation obligations in civil litigation pending against it.” Id. Judge Zagel went on to state that the district courts in Smith v. Obama, Case No. 2:13-cv-00257, slip opinion, 2014 WL 2506421 (D. Idaho June 3, 2014), ACLU v. Clapper, 959 F.Supp.2d 724 (SDNY 2013) and United States v. Moalin, No. 10cr4246, slip copy, 2013 WL 6079518 (S.D.Cal. Nov. 18, 2013), had all “recognized that the Supreme Court’s opinion in Smith v. Maryland is controlling and does not support a finding that the bulk telephony metadata collection is a violation of the Fourth Amendment.”  At 9.  Portraying Judge Leon’s opinion in Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013) as an outlier, he ignored Judge B. Lynn Winmill’s statement in Smith v. Obama that Judge Leon’s “thoughtful and well-written” opinion “should serve as a template for a Supreme Court opinion.”  2014 WL 2506421 at *3-4. In addition, Judge Zagel dismissed Judge Leon’s conclusion that the telephony metadata program very likely violated the Fourth Amendment by invoking, but not describing, the “extensive analysis” in FISC Judge Collyer’s March 20 Opinion and Order. At 11. Although he acknowledged that there were “a number of thoughtful points” in the Center for National Security Studies’ amicus brief, Judge Zagel concluded, without discussing the Center’s reasoning, that the program was properly authorized by statute. Id.

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