Fisa Court Claims No Challenges on NSA Phone Records Orders, Despite Mechanism for Doing So

When Edward Snowden blew the whistle on the NSA spying of individuals, the barn door was opened, the horses ran out, and the federal government has been busy at work trying to close it ever since. First came the news about the surveillance of Verizon Wireless customers which quickly bloomed into all cell phone companies. It soon followed that information was gleaned from internet companies and a host of denials in the form of public statements were issued by the behemoths. These quickly turned out to be nothing more than a CYA maneuver to avoid loss of revenues when it was discovered that major companies actually worked with the NSA to help them break the companies’ data encryption.

It was later reported that one internet provider, XMission, refused to cooperate with government requests for broad data and according to the owner, the company suffered no government backlash. So, why was XMission able to refuse without incident?

According to the Guardian, “No telecommunications company has ever challenged the secretive Foreign Intelligence Surveillance Court’s orders for bulk phone records under the Patriot Act.”

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The Guardian reported on Sept. 17, 2013:

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The secretive Fisa court’s disclosure came inside a declassification of its legal reasoning justifying the National Security Agency’s ongoing bulk collection of Americans’ phone records.

Citing the “unprecedented disclosures” and the “ongoing public interest in this program”, Judge Claire V Eagan on 29 August not only approved the Obama administration’s request for the bulk collection of data from an unidentified telecommunications firm, but ordered it declassified. Eagan wrote that despite the “lower threshold” for government bulk surveillance under Section 215 of the Patriot Act compared to other laws, the telephone companies who have received Fisa court orders for mass customer data have not challenged the law.

“To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order,” Eagan wrote. “Indeed, no recipient of any Section 215 Order has challenged the legality of such an order, despite the mechanism for doing so.”

That complicity has not been total. Before the Bush administration moved the bulk phone records collection under the authority of the Fisa court, around 2006, Qwest Communications refused to participate in the effort.

Telecommunications company acquiescence to the bulk phone records collection orders also contrasts with the protestations of some internet companies regarding their relationship with the NSA. Yahoo is petitioning the Fisa court to disclose a 2008 incident in which it refused to comply with bulk NSA surveillance until the court demanded it turn over customer data.

The federal government violated the Constitution by spying on Americans, and the entities approached to provide information to the government had a recourse they did not exercise. Yahoo refused at one point. So did Qwest and more recently XMission refused totally. With all the company lawyers the major companies employ, it would be hard to fathom their ignorance of that portion of the law, if you can call it law because of its unconstitutionality. Some resisted at one point, but that seemed to go south.

The PATRIOT Act has always been an abominable law aimed at nothing more than the removal of citizen’s rights by increasing government intrusion into areas considered private and protected under the Constitution. Hastily passed and signed into law in order to “protect” America against terrorism, it has seemed to do everything but stop terrorism in America.

The Guardian report continued:

While the director of national intelligence, James Clapper, in July declassified a Fisa court order underpinning the bulk phone records collection, the order declassified on Tuesday delved far deeper into the reasoning used by the court to justify the mass collection under Section 215, allowing the government to access data “relevant” to an “ongoing” terrorism investigation.

The disclosure is the third major court disclosure about bulk surveillance in a week. On Friday, the Fisa court – citing the public interest in surveillance generated by the former NSA contractor Edward Snowden – ordered the government to review for potential declassification post-2011 court opinions related to the phone records database.

Tuesday’s ruling presented one such opinion – one that found the court in substantial agreement with the government’s interpretation of its powers under the Patriot Act.

Citing a supreme court precedent, Eagan found that there are no Fourth Amendment protections around so-called “metadata”, the records of phone numbers dialed and received or the times and durations of phone calls. While the precedent, Smith v Maryland, had to do with an individual case, Eagan wrote that the collection of metadata from millions of people does not, en masse, create a constitutional problem.

That contention is the subject of court challenges by the American Civil Liberties Union (ACLU) and other groups.

Eagan’s August 2013 order also shed light on how the court considers mass phone records from Americans not under suspicion of wrongdoing “relevant” to an “ongoing” terrorism investigation.

“The government’s burden under Section 215 is not to prove that the records sought are, in fact, relevant to an ongoing investigation,” Eagan wrote; merely that the government must have “reasonable grounds to believe that the information sought to be produced has some bearing on its investigations of the identified international terrorist organizations.”

The judge assented to the government’s argument that the necessity underpinning the bulk phone records collection was “to create a historical repository of metadata that enables NSA to find or identify known or unknown operatives”, including inside the United States.

So, Eagan believes that metadata from millions does not constitute a constitutional problem; but, the government has reasonable grounds to believe that data sought to be produced has some bearing on investigations of identified international terrorist organizations. In other words, everyone is suspected of being associated with a terrorist organization. I guess the rationale is it’s easier to issue one subpoena or warrant for the information to the company than to issue millions, one for each individual. After all, the government needs this to create some sort of “historical repository to find or identify known or unknown operatives.”

Yeah, it can be seen how that’s working out. Any takers on the Boston Bombing or Fort Hood jihad shooting? For all the data the government collected, those incidents were not prevented nor anticipated and the data the government had been used after the fact: two good cases that prove the government claims as false.

Using Eagan’s logic and description of metadata, every American citizen should demand to see each and every member of Congress’ cell phone to scroll through their log on numbers called, received and duration and times of calls. Better yet, the service providers should publish it online. Americans need that information to create a “historical repository to find or identify known or unknown operatives” engaging in tyrannical behavior; but, that won’t happen. It has been suggested that the metadata collected by the NSA can be gleaned for more information to include personally identifiable information – metadata is not as harmless as the government portrays it to be.

The Fourth Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In reviewing the Fourth Amendment, effects could be considered your phone records, internet activity or emails since it is a virtual form of communication. Reasonable grounds certainly does not equate to probable cause, and a blanket request is not specific on place and things. It must be considered that, with Obamacare implementation, health care records will soon be considered as part of the data needed for terrorist investigations. The government will most certainly devise some sort of lame rationale for it and call it constitutional. With the IRS oversight of Obamacare, one phone call will net NSA millions of private records for the “historical repository.”

Patrick Toomey, a lawyer for the ACLU said, “It’s problematic because it means the government is allowed to collect records merely in anticipation of investigations.”

Kurt Opsahl, a lawyer with the Electronic Frontier Foundation, said the ruling “shows trouble with having a one-sided court process, where the court is only seeing arguments from one side and seems to adopt those arguments.”

Naturally, the government sided with itself. The government would ignore any opposition, so they just didn’t allow opposition in the first place. This allowed government to keep their unilateral application of their brand of “judicial process” from being exposed for quite some time.

James Clapper, in a brilliant display of “useful idiotness,” stated the opinion shows the collection of the metadata is lawful and constitutional, and release of this information is consistent with the president’s call for more transparency on these intelligence programs.

Mr. Clapper, please remove your nose from the president’s backside and back away as you have become addicted to the gas which causes loss of brain cells and function.

But it’s not just Clapper. The whole of Washington has been gassed, and it wasn’t sarin.

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