Secret US Court Allows NSA To Resume Metadata

A secret US Court ruled late Monday that the National Security Agency is free to continue its bulk telephone metadata surveillance program—the same spying that Congress voted to terminate weeks ago.

Congress disavowed the program that NSA whistleblower Edward Snowden exposed when passing the USA Freedom Act, which President Barack Obama signed June 2. The program was allowed to be extended for six months to allow “for an orderly transition” to a less-invasive telephone metadata spying program.

Lawmakers approve a variation of the phone-records spy program Snowden revealed. However, the Obama administration needed the blessing of the Foreign Intelligence Surveillance Court (FISA Court). The government just revealed the order. the FISA Court ruled that “Congress deliberately carved out a 180-day period following the date of enactment in which such collection was specially authorized. For this reason, the Court approves the application (PDF) in this case.”

The government urged the FISA Court not to acquiesce to a federal appellate court’s May decision that declared illegal the collection of metadata from every call in and out of the United States. That court had ruled that Congress did not clearly authorize the spying. The Justice Department also told the secret court that the 2nd US Circuit Court of Appeals’ decisions “do not constitute controlling precedent for this Court.”

The FISA Court, which has approved the snooping program 49 times in three-month intervals, agreed with the Obama administration and said it “respectfully disagrees with that court’s analysis, especially in view of the intervening inaction of the USA Freedom Act.” The court said that Congress’ approval of the USA Freedom Act was evidence that Congress wanted the bulk collection to continue for six more months.

Under the USA Freedom Act that Obama signed, the bulk phone metadata stays with the telecoms and can be accessed with the FISA Court’s blessing if the government claims a reasonable suspicion that data of a selected target is relevant to a terror investigation and that at least one party to the call is overseas. The Constitution’s Fourth Amendment standard of probable cause does not apply. The law also allows a public advocate, for the first time, in the FISA Court courtroom.