MANHATTAN (CN) – Quipping in French about the nature of change, a federal judge with the Foreign Intelligence Surveillance Court gave the National Security Agency carte blanche this week to temporarily resume a telephone data-collection program that a federal appeals court recently deemed illegal.
“Plus ça change, plus c’est la même chose, well, at least for 180 days,” Judge Michael Mosman wrote.
This cheeky opener for the 26-page opinion refers to a period of delay stipulated before the enforcement certain amendments to the USA Freedom Act, a law the Senate passed in June that includes a data-scooping ban set to take effect on Nov. 29.
In finding that that Section 215 of the Patriot Act authorizes the NSA to continue its data-collection program until the new protocols take effect later next year, Mosman’s order squarely contradicts a May 7 decision by the Second Circuit .
Mosman, an appointee of President George W. Bush, filed the order Monday, but it must undergo declassification review before the Office of the Director of National Intelligence can post it to its website. Justice Department officials nevertheless attached the order to a statement released Tuesday evening.
Tension of this nature has been recurring since the unauthorized disclosures by former NSA contractor Edward Snowden, beginning with the June 2013 leak of a top-secret FISC order that forced Verizon turn over the data of millions of customers, including U.S. citizens who were not suspected of any crime.
The FISC had operated entirely in secret back then, with its orders under a veil of classification and its hearings tucked away in an undisclosed room of a federal courthouse in Washington. Proceedings continue to take place under wraps, but the rulings in the post-Snowden era occasionally reach the public after declassification.
Though the Second Circuit found that the anti-terrorism law could not justify the NSA’s program, Mosman wrote Monday that this Manhattan panel’s dictates are “not binding” on the FISC in Washington.
Citing the “intervening enactment of the USA Freedom Act,” Mosman said “this court respectfully disagrees with that court’s analysis.”
“In passing the USA Freedom Act, Congress clearly intended to end bulk data collection of business records and other tangible things,” he wrote. “But what it took away with one hand, it gave back – for a limited time – with the other.”
A joint statement by the Department of Justice and the Office of the Director of National Intelligence says that the legislation also “provided a new mechanism to allow the government to obtain data held by the providers.”
Later, the agencies added that the “data should remain at the telephone companies with a legal mechanism in place that would allow the government to obtain data pursuant to individual orders from the FISC approving the use of specific numbers for such queries.”
The ACLU’s deputy legal director Jameel Jaffer promised to fight the FISC’s holding in New York.
“Neither the statute nor the Constitution permits the government to subject millions of innocent people to this kind of intrusive surveillance,” he wrote in an email. “We intend to ask the Second Circuit to prohibit the surveillance and to order the NSA to purge the records it has already collected.”
The FISC’s order also allows the conservative think tank FreedomWorks and its lawyer Ken Cuchinelli to argue against the program in friend-of-the-court briefs. The organization did not immediately respond to a request for comment.
Opponents of the “mass surveillance” at the American Civil Liberties Union had wanted the Second Circuit to find the program unconstitutional, but the Manhattan-based judges ultimately decided the case on narrower grounds.
In a concurring opinion, one judge urged Congress to take action, and the USA Freedom Act passed the Senate less than a month later on June 2.
Shortly after signing the act that day, President Barack Obama’s administration quickly took advantage of a clause of the law allowing for a 180-day transition period between the old NSA program and a new one keeping the data in the telecoms’ possession.
The government interpreted the clause as allowing for the temporary extension of a program that the Second Circuit enjoined.
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