Surveillance Court Ruling Chips at Privacy

     WASHINGTON (CN) — Privacy advocates are voicing alarm at a new surveillance court ruling that endorses loopholes for the U.S. government to collect private data in the name of national security.
     “Although the decision focused on phone calls, it carries serious risks for the privacy of Americans’ internet communications,” said Patrick Toomey, a staff attorney with the American Civil Liberties Union, in an email. “It permits the government to collect sensitive content under the guise of collecting metadata — a ruling that the government may invoke to effectively bypass constitutional protections for Americans’ web browsing records, like online research for medical information, online political activities and search histories.”
     The U.S. Foreign Intelligence Surveillance Court of Review released the opinion to the public last month in answer to a question certified in February by the lower spy court in Washington.
     It endorses the collection of content called “post-cut-through digits,” defining the term as numbers or digits that are dialed after the call is initially collected or “cut through.”
     Investigators would find such digits helpful, for example, if the target of their surveillance used a calling card to connect with his contact.
     To get the data, the government must first be already employing a pen-register or trap-and-trace device. Pen-register devices record signals transmitted from a cellphone or other electronic instrument. The trap-and-trace aspect takes those signals and identifies “the originating number or source of an incoming wire or electronic communication,” according to the ruling, which is dated April 14 but released on Aug. 22.
     Technology like this dates back decades but has rapidly evolved — effectively changing the scope of surveillance.
     In endorsing the collection of post-cut-through digits last month, the review court noted the potentially valuable national-security intelligence that can come from a second dive into data.
     Though the court has now designated such surveillance constitutionally, it cautioned that the cut-through data is not necessarily admissible as evidence in a criminal investigation.
     “Any content information that is collected as part of the interception of post-cut-through digits may not be used for investigative purpose, absent an order from the court,” the opinion states.
     Over the course of all pen-register investigations spanning three decades, the ruling says, the government has never sought such an order.
     This concession did little, however, to placate Lee Tien, a senior staff attorney with the Electronic Frontier Foundation.
     “It feels like hollow protection to say it’s OK to collect but not to use it,” Tien said. “How do you know that’s being complied with? There’s no transparency or check.”
     What concerns civil libertarians is that the devices at issue can collect more than dialed numbers. Pen registers can also capture text messages or emails sent from a digital device.
     As data mining goes from strictly phone numbers to recorded communication or “content,” as the court defined it, organizations like the ACLU and EFF question how the court’s ruling will affect the average citizens who pose little threat to national security.
     The EFF’s Tien said he thought the ruling was a rush to judgment.
     “We think FISCR was too quick to permit collection of so-called ‘content information,'” he said, abbreviating the review court’s name. “If you ask me in an email, Lee, what’s your phone number? And I reply its 333-6666, that phone number is the content of the email. We don’t believe Congress meant otherwise. This is fundamentally wrong.”
     Last month’s ruling strongly emphasizes that the data collection at issue concerns only foreign spies inside the United States and not average Americans. For the ACLU’s Toomey, however, the court’s unwillingness to engage in more transparency with the public about the controversial devices does not bode well for the future.
     “There was no legitimate reason to exclude the public from participating in these secret [surveillance court] proceedings,” Toomey said.
     He added that cases involving such complex legal and technological issues “merit both broader public debate and the input of technical experts.”
     The three-judge panel behind the unsigned decision cited a long history of legal precedents on the matter.
     “An order authorizing such surveillance [does not] run afoul of the Fourth Amendment’s guarantee against unreasonable searches and seizures,” the 38-page ruling states. “The warrant requirement [of the amendment] is generally a tolerable proxy for ‘reasonableness’ when the government is seeking to unearth evidence of criminal wrongdoing.”
     The panel backed its findings with the Supreme Court’s 1979 decision in Smith v. Maryland, which say an agency using a pen register to collect numbers dialed on a target’s telephone does not constitute a search under the Fourth Amendment. The same rule applies to incidental content that is collected, the case said.

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