ACLU Seeks Secret Court Opinions Authorizing NSA’s Mass Acquisition of Americans’ Phone Records

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By Patrick C. Toomey

The ACLU and Yale Law School’s Media Freedom and Information Clinic filed a motion today with the Foreign Intelligence Surveillance Court (FISC), seeking the release of secret court opinions that permit the government to acquire Americans’ phone records en masse. The public has a right to know the legal justification for the government’s sweeping surveillance-but, until now, those judicial opinions have remained a heavily guarded secret.

The ACLU filed its motion on the heels of last week’s disclosure of an order, issued under Section 215 of the Patriot Act, compelling a Verizon subsidiary to turn over call details for every domestic and international phone call placed on its network during a three-month period. Since then, media reports and statements by members of the congressional intelligence committees have made clear that this order belongs to a much larger surveillance program-covering all the major telephone companies-that has been in existence for the past seven years.

When pressed about the program, members of Congress as well as executive officials have emphasized that this mass acquisition of Americans’ phone records was reviewed and approved by judges on the FISC.

Section 215 of the Patriot Act allows the director of the FBI to obtain secret court orders from the FISC compelling third parties to produce “any tangible thing” relevant to foreign intelligence or terrorism investigations.

The orders are accompanied by a gag order forbidding recipients, like Verizon, from disclosing that they even received a demand for records.   As a result, Americans know very little about the authority the government has claimed under Section 215 and the extent of the records acquired by the government under these orders.

But after last week’s disclosures, we now know more about this surveillance program-and what we learned has been deeply troubling. Indeed, the fact that the FISC has allowed the government to demand the call details of all Verizon Business customers, and probably those of millions of other telephone subscribers, raises more questions than it answers.

For instance, how could all phone records be “relevant” to authorized foreign intelligence or terrorism investigations, as the law requires for the government to demand these records? Likewise, why doesn’t the government’s seizure of such an immense amount of personal information, belonging to millions of innocent Americans, violate the Fourth Amendment, which protects against unreasonable invasions of privacy?

How can Section 215 authorize such a vast and intrusive surveillance program, when almost no one understood at the time Congress passed the law that it had handed this sweeping power to our government?

The FISC’s legal opinions presumably shed light on these pressing questions and others. The public is entitled to know the legal basis for such a program and the legal interpretation of Section 215 that supports the government’s demand for a complete log of all our phone calls.

As the ACLU lays out in its motion for release of these FISC opinions, the public has a First Amendment right to judicial opinions interpreting laws like Section 215. We can have an informed debate about the wisdom of this law only if we know what our courts have taken it to mean and why.

There is no question that these FISC opinions are critical to the public debate over government surveillance that last week’s disclosures have sparked. The ACLU has been seeking the same FISC opinions through a Freedom of Information Act lawsuit for nearly two years, with the government stonewalling at every turn.

Now that the cat is out of the bag, public officials have rushed to defend the surveillance program, saying that it is court-approved and Americans only need to understand the safeguards that the government applies after storing this trove of phone records. President Obama himself stated on Friday that he “welcome[s] this debate” and thinks it’s “good that we’re having this discussion.”

Director of National Intelligence James Clapper complained that the disclosures “omit key information” about the program, and declared that “it is important for the American people to understand the limits of this targeted counterterrorism program and the principles that govern its use.”

Unfortunately, officials seem to believe that the public’s understanding should be based only on information the government selectively releases.

Needless to say, this debate has come much too late, as a direct result of the government’s secrecy-but the ACLU agrees that the public deserves to know much more.

Patrick C. Toomey is a Fellow at the ACLU National Security Project

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6 thoughts on “ACLU Seeks Secret Court Opinions Authorizing NSA’s Mass Acquisition of Americans’ Phone Records”

  1. craised

    People are slow to learn from History, a government spying on its people if allowed will be abused, governments will use patriotism against you and even get your children to spy for them as was done by Germany during WWII. Researching and storing information on people is dangerous too as Germany used their own and captured census data in invaded countries with IBM Hollerith machines to sort the Jews from the general population, round them up and send them to the death camps. These are far from the only examples.

    “Of course the people don’t want war. But after all, it’s the leaders of the country who determine the policy, and it’s always a simple matter to drag the people along whether it’s a democracy, a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger.”

    — Herman Goering at the Nuremberg trials

    Why do you think they called it the “Patriot Act” and congress voted for it unread? Almost unaminously at that.

  2. Mr Obvious

    This issue has made for some interesting bedfellows. Let’s put this in perspective for a minute. Would you rather let the government have your metadata or your medical data.
    [quote]Why do you think they called it the “Patriot Act” and congress voted for it unread?[/quote]
    If we are going to talk about legislation that wasn’t read I’m more concerned about the data collecting in the Affordable Care Act.

  3. jimt

    Director of National Intelligence James Clapper complained that the disclosures “omit key information” about the program, and declared that “it is important for the American people to understand the limits of this targeted counterterrorism program and the principles that govern its use.”

    Er, it is ‘important’ now, but was too insignificant to mention a couple of weeks ago?

    If the intelligence agencies argue that it is important to mine the personal data of vast numbers of citizens, it is even more important that there are independent watchers of these intelligence agencies; there is no reason to believe that individuals within these intelligence agencies are all inherently more trustworthy or less vulnerable to temptation than a typical American citizen.

    Who will watch the watchers? Perhaps both sides watch each other to a comparable extent and each side blows the whistle on mis-steps; this keeps each side honest!

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