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Who Says the NSA’s Metadata Collection Is Legal?

According to a Pew Research poll, the majority of Americans believe the government’s claims that the harvesting of domestic phone records is legal. The law, however, says otherwise.

June 18, 2013
Cross­pos­ted on Boston Review.
Many Amer­ic­ans don’t know quite what to make of the govern­ment harvest­ing reams of “metadata” from our tele­phone calls. For a size­able propor­tion of the over-30 popu­la­tion, the very term “metadata” signi­fies to the listener that he is in over his head and might as well stop listen­ing. To be sure, a person might under­stand that tech­niques called “data mining” and “pattern match­ing” can be used to glean detailed and sens­it­ive inform­a­tion from the dry facts about whom we call and when. But it’s hard to intern­al­ize a concern that feels more like science fiction than real­ity. 
That’s one reason the public’s response to the story about the National Secur­ity Agency’s collec­tion of domestic phone records turns so heav­ily on its perceived legal­ity. Govern­ment offi­cials’ defense of the program has focused on its approval by federal judges and over­sight by “all three branches of govern­ment.” In other words, whatever you might think about metadata (prob­ably not much), the program is legal, and so there’s noth­ing to worry about. 
The public appears to have embraced this char­ac­ter­iz­a­tion. A recent Pew Research poll found that 56 percent of Amer­ic­ans think the govern­ment’s collec­tion of their tele­phone records is accept­able. In recent media appear­ances, I’ve been posed many ques­tions begin­ning with: “We know the program is legal, but . . .”
Not so fast. A person might need a degree in computer science to under­stand the vari­ety of ways metadata can be manip­u­lated. But no law degree is needed to under­stand the words of section 215 of the Patriot Act, which is the provi­sion that supposedly author­izes the govern­ment’s domestic tele­phone records collec­tion program. Here’s what section 215 says the govern­ment can obtain from tele­phone compan­ies or other third parties with an order from the Foreign Intel­li­gence Surveil­lance Court (FISC):
[T]he Director of the Federal Bureau of Invest­ig­a­tion . . . may make an applic­a­tion for an order requir­ing the produc­tion of any tangible things (includ­ing books, records, papers, docu­ments, and other items) . . .
Here’s what the govern­ment is required to include in its applic­a­tion for a court order requir­ing compan­ies to turn over records or other “tangible things”:
a state­ment of facts show­ing that there are reas­on­able grounds to believe that the tangible things sought are relev­ant to an author­ized invest­ig­a­tion . . . to obtain foreign intel­li­gence inform­a­tion not concern­ing a United States person or to protect against inter­na­tional terror­ism or clandes­tine intel­li­gence activ­it­ies . . .
Here’s what section 215 says about the circum­stances under which the FISC may issue the reques­ted order:
Upon an applic­a­tion made pursu­ant to this section, if the judge finds that the applic­a­tion meets the require­ments of subsec­tions (a) and (b), the judge shall enter an ex parte order . . . approv­ing the release of tangible things.
In short: the govern­ment may apply for an order requir­ing compan­ies to turn over records, and the judge may grant the order if the govern­ment’s applic­a­tion sets out facts estab­lish­ing that the records are relev­ant to a foreign intel­li­gence or inter­na­tional terror­ism invest­ig­a­tion.
Now, let’s review what we know about the govern­ment’s actual program. The Guard­ian produced a FISC order show­ing that a subsi­di­ary of Veri­zon was ordered to produce all of the tele­phone metadata of all of its subscribers for a three-month period. Senator Diane Fein­stein soon confirmed that this order was essen­tially boil­er­plate and likely had been issued every 90 days for the past seven years. Reports followed that the other major Amer­ican tele­phone compan­ies were part of the program as well.
James Clap­per, the Director of National Intel­li­gence, acknow­ledged the program (although he didn’t confirm its scope). He justi­fied the bulk collec­tion in part by point­ing to restric­tions on “query­ing” the collec­ted inform­a­tion: 
By order of the FISC, the Govern­ment is prohib­ited from indis­crim­in­ately sift­ing through the tele­phony metadata acquired under the program. . . . The court only allows the data to be quer­ied when there is a reas­on­able suspi­cion, based on specific facts, that the partic­u­lar basis for the query is asso­ci­ated with a foreign terror­ist organ­iz­a­tion.
That may sound reas­sur­ing. But noth­ing in section 215 allows the govern­ment to collect now and estab­lish relev­ance later. The stat­ute clearly requires the govern­ment to show in its applic­a­tion that the records sought are relev­ant to an ongo­ing invest­ig­a­tion, and it author­izes the judge to issue an order only if that show­ing is made.
Why, then, did the FISC approve the program? Until the govern­ment decides to release the court’s legal opin­ion, we can only spec­u­late. One possib­il­ity is that the FISC deemed all metadata of all Amer­ic­ans’ phone calls to be “relev­ant” to an author­ized invest­ig­a­tion. Such an anemic defin­i­tion of “relev­ance” would render this limit­a­tion in the stat­ute mean­ing­less. That would contra­dict a basic rule of stat­utory inter­pret­a­tion: judges should presume Congress meant its words to have effect. 
A second possib­il­ity is that the FISC believed the govern­ment’s program adhered to the basic purpose and spirit of the stat­ute, if not the letter. If the words of the stat­ute were any less clear, the govern­ment would be free to make that argu­ment (although a good lawyer could easily rebut it—more on that later). But there is no ambi­gu­ity on this point in section 215. Another basic rule of stat­utory inter­pret­a­tion: the language of the stat­ute, if clear, must be honored.
A third possib­il­ity—one that’s suppor­ted by the latest report from the Wash­ing­ton Post—is that the govern­ment defines the “tangible things” it is obtain­ing, not as the records of indi­vidual subscribers, but as entire data sets held by Veri­zon and other compan­ies. In that case, the govern­ment could describe the data set as “relev­ant” if it contained any relev­ant data what­so­ever. That inter­pret­a­tion, too, would largely evis­cer­ate section 215’s “relev­ance” require­ment. The govern­ment could always describe a larger universe of inform­a­tion in which specific relev­ant inform­a­tion resides, thereby sweep­ing in huge amounts of irrel­ev­ant mater­ial.
The depar­ture from the stat­ute’s term­s—al­low­ing the govern­ment to estab­lish relev­ance after collec­tion rather than before—is­n’t just a tech­nic­al­ity. As the saying goes, posses­sion is nine tenths of the law. Once the records are in the govern­ment’s posses­sion, the govern­ment is left to police its own compli­ance with whatever restric­tions the FISC has put in place. The retrieval of this data takes place within virtual fort­resses surroun­ded by layer upon layer of high-tech secur­ity. If a govern­ment offi­cial were to access data improp­erly, there is abso­lutely no way the FISC­—or Congress—­would know. It goes against the very purpose of section 215 to deleg­ate the FISC’s gate­keeper func­tion to the party that wants to get through the gate.
It seems the FISC got it wrong—and we should­n’t be surprised. The FISC oper­ates outside the normal adversarial process that char­ac­ter­izes Amer­ican courts. In the vast major­ity of cases, the govern­ment is the only party that appears. The facts and legal argu­ments heard by the judge are the ones the govern­ment chooses to present. In ordin­ary litig­a­tion, each party conducts discov­ery in order to disgorge the evid­ence his or her oppon­ent would prefer to keep hidden. No such process takes place in a FISC proceed­ing. Moreover, there is no oppos­ing coun­sel to rebut the govern­ment’s legal argu­ments. On top of that, the FISC judges come to know the limited set of govern­ment offi­cials who present the applic­a­tions; in a sense, they work together. Small wonder that the court has denied only 11 of the more than 30,000 applic­a­tions made since 1978.
It’s no scan­dal for a judge to reach the wrong result. Our regu­lar federal court system has two levels of appeal for exactly that reason. There is a FISA appeals court, too—the “Foreign Intel­li­gence Surveil­lance Court of Review”—but it’s of little use in cases where the FISC grants the govern­ment’s applic­a­tion. After all, the FISC’s order is secret; and even if the people whose records are at stake knew about the order, they aren’t parties to the case and can’t appeal. The Court of Review serves the govern­ment only.
There are many aspects of the govern­ment’s program that may elude a layper­son’s compre­hen­sion. But there is room for common sense in this debate. Even for those who don’t know what metadata is, the fact that the govern­ment wants it so badly should indic­ate it’s not just a bunch of trivial numbers. And even for those who haven’t stud­ied the law, it’s clear that a stat­ute requir­ing the govern­ment to show a record’s relev­ance before obtain­ing it does­n’t permit indis­crim­in­ate, drag­net collec­tion. If a secret court says other­wise, that may say more about the limit­a­tions of secret judi­cial review than it does about the program’s legal­ity.