Lawmakers, LinkedIn Raise Objections to Surveillance Court Procedures

The Foreign Intelligence Surveillance Court opinion disclosure comes amid confusion over the leaks of National Security Agency contractor Edward Snowden this summer, which prompted a bigger push for surveillance transparency and oversight from both the Obama administration and Congress. The House Judiciary Committee held a closed hearing on the Foreign Intelligence Surveillance Act Court Wednesday, with several top intelligence officials set to testify. Several lawmakers have expressed interest in bills to amend the surveillance processes, including Patriot Act author House Judiciary Crime and Terrorism Subcommittee Chairman Jim Sensenbrenner, R-Wis., which would seek to rein in the bulk collection of phone data under Section 215 of the Patriot Act.

But Eagan said “there is no cognizable Fourth Amendment interest in a telephone company’s metadata that it holds in the course of its business” and “no Constitutional impediment to its requested production.” The Fourth Amendment prohibits unreasonable search and seizure. She pointed to Section 215 as an enabling provision. “The opinion affirms that the bulk telephony metadata collection is both lawful and constitutional,” ODNI said in a statement when posting the opinion. “The release of this opinion is consistent with the President’s call for more transparency on these valuable intelligence programs.” Eagan said the produced information’s “sole purpose” is to “obtain foreign intelligence information” in authorized investigations of international terrorism. A footnote of Eagan’s opinion specifies that the phone metadata collected “does not include the substantive content of any communication.”

No telcos have objected, Eagan added. “To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.”

But following Wednesday’s closed House Judiciary hearing, Chairman Bob Goodlatte, R-Va., said, “I am convinced that further protections are necessary.” Surveillance activities should include “robust oversight, additional transparency, and protections for Americans’ civil liberties while maintaining a workable legal framework for national security officials to keep our country safe from foreign enemies,” Goodlatte said in a statement, committing to work toward those changes.

Two Democratic senators criticized “the low standard that the FISA Court has set for protecting Americans’ liberties,” focusing on the FISC opinion. It “highlights the problems we have with the Court’s overbroad interpretation of the ‘relevance’ standard,” said Sens. Mark Udall, D-Colo., and Ron Wyden, D-Ore., members of the Intelligence Committee and critics of the surveillance program, in a joint statement Wednesday. “The Court decided to take an incredibly expansive approach to defining that term, and its ruling means that this cornerstone provision of surveillance law essentially contains no limits at all on the government’s authority.” The 1979 Smith v. Maryland Supreme Court decision, which Eagan used to support the surveillance, “was based on the limited technology of the rotary phone era,” they said. “In an age of personal cell phones and mobile IP addresses, it is unrealistic to say that collecting Americans’ phone records in bulk does not infringe on their privacy.” They advocated for a narrower interpretation of the government’s domestic surveillance authorities and promised to “continue the fight.”

"As a defense of the NSA’s mass collection of call records, the opinion issued today is completely unpersuasive,” said American Civil Liberties Union Deputy Legal Director Jameel Jaffer in a statement. “Its Fourth Amendment analysis fails even to mention the landmark privacy case decided by the Supreme Court last year, U.S. v. Jones. On the whole, the opinion only confirms the folly of entrusting Americans’ privacy rights to a court that meets in secret and hears argument only from the government."

ACLU Staff Attorney Alex Abdo also objected to the order. “Imagine replacing the key words -- ’telephone communications’ and ’telephone company’s metadata’ -- with just about any other set of information the government wants to collect, and you'll be well on your way to justifying pervasive and indiscriminate surveillance of not just our phone records, but our emails, credit-card transactions, medical records, and more,” Abdo said in a Wednesday blog post (http://bit.ly/1a4qV1s).

"This isn’t a judicial opinion in the conventional sense, it’s a document that was cobbled together over the last few weeks to justify a secret decision that was made seven years ago,” Jaffer added of the FISC opinion. “The court should release the original authorization of the NSA phone spying program."

The FISC also faces a challenge from LinkedIn as part of a separate battle tech companies have waged. The professional networking website filed an amicus brief in the 9th U.S. Circuit Court of Appeals as well as a petition before the FISC this week pushing for more disclosure. “The government’s restrictions on the information that LinkedIn can provide to its members and to the public lacks any support in the law and is inconsistent with the Constitution,” LinkedIn told FISC in its petition (http://linkd.in/1aRiNWB). “Moreover, LinkedIn’s reputation and business have been and continue to be affected by the limitations on the information LinkedIn can disclose, particularly in light of the recent news reports of government surveillance activity and the false and misleading news reports suggesting that LinkedIn may itself be the subject of extensive government surveillance."

"Disclosure of the number of requests does not reveal what information or threats the government is investigating nor does it reveal who the information relates to or the member or members at issue,” LinkedIn argued in its amicus brief (http://linkd.in/1eoZT9P), pointing to alleged violations of its First Amendment rights. “An aggregate number does not give anyone warning that he or she is under suspicion or the target of surveillance."

LinkedIn published its transparency report for the first six months of 2013 but lamented its lack of detail on U.S. national security requests for data. “This is because the U.S. government prohibits us from doing so,” said LinkedIn General Counsel Erika Rottenberg in a Tuesday blog post (http://linkd.in/1dmVCRk). “We believe our members and the LinkedIn community deserve to know this information, especially in light of recent revelations about the nature of U.S. government surveillance. We've been in discussions with the U.S. government for months in an effort to convince them to allow us to release these numbers as part of our Transparency Report and these discussions recently reached an impasse.” It wants an order allowing it to disclose aggregate data without violating the law. Rottenberg wrote a long letter to LinkedIn members describing the company’s efforts (http://linkd.in/1aRiPxt), as well as a letter to the FBI (http://linkd.in/169uEgI).