The Los Angeles Times reports this morning, 7/31/13, that the Obama Administration has declassified the order of the Foreign Intelligence Surveillance Court which authorized the collection of call data records or “metadata” on a large scale. Time reporter Ken Dilanian writes:
The now-declassified order is expected to be made public Wednesday when Deputy Atty. Gen. James Cole, NSA Deputy Director John Inglis and other officials are to appear before the Senate Judiciary Committee.
This order is expected to show the reasoning for determining that “records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities,” the standard required by Section 1861 of the Foreign Intelligence Surveillance Act (FISA), as codified, sometimes erroneously referred to as Section 215 of the USA PATRIOT Act or “the Library Provision.” That “in accordance with subsection (a)(2)” language in the preceding sentence requires that:
“(2) An investigation conducted under this section shall—
“(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
“(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
The underlying basis for the legality of this entire section of FISA is the “third party records doctrine” which was upheld just yesterday by the first U.S. Court of Appeals to reach the issue of the Constitutionality of collecting historical cell tower (geo-location) data in the hands of service providers. That ruling is reported today in the New York Times:
Ruling 2 to 1, the court said a warrantless search was “not per se unconstitutional” because location data was “clearly a business record” and therefore not protected by the Fourth Amendment.
The case is in re Application of the United States of America for Historical Cell Site Data, with the full text here.
In short, the third party records doctrine is long-standing precedent of the Supreme Court that business records concerning you created and held by third parties such as banks, bakeries, and telephone companies are their records, not yours, and that you therefore have no Constitutionally protected reasonable expectation of privacy in those records. Note, that this Constitutional doctrine does not apply to real-time (prospective) acquisition by the government of the contents of communications, and that statutes such as the Stored Communications Act protect the contents of communications collected retrospectively. At issue in what is being released today and in yesterday’s court ruling is “metadata” only, such as the time, duration, and location of a telephone call.
Leave a Reply