US mass surveillance: Verizon's challenge to collect metadata for NSA failed
Despite a ruling late last year that the NSA collection is likely unconstitutional, a judge on the in March ruled against Verizon's challenge to the collection.
According to The New York Times, the government seeks orders from the FISA court every 90 days to direct phone companies to turn over to the NSA on a daily basis all call-detail records. The records include numbers dialed and call times and durations, but not their content.
Verizon challenged the collection in January, arguing that it could not be sure that the court had considered the opinion that the program likely violated Americans' privacy rights, according to documents released by the Office of the Director of National Intelligence.
This means, Verizon didn't directly challenge the government's right to make companies turn over "telephony metadata" - information about the phone numbers customers dial and the time, date and duration of such calls but instead asked the FISC to explain its legal reasoning.
In an order signed on March 20 but only unsealed on Friday, Judge Rosemary M. Collyer wrote that the National Security Agency's bulk collection was legal and did not violate the Fourth Amendment's prohibition against unreasonable search and seizures because Americans have no "reasonable expectation" that metadata, which they voluntarily reveal to their phone companies, will remain private.
"If a person who voluntarily discloses information can have no reasonable expectation concerning limits on how the recipient will use or handle the information, it necessarily follows that he or she also can harbor no such expectation with respect to how the Government will use or handle the information after it has been divulged by the recipient," Collyer wrote.
Judge Collyer ruled that, based on a 1979 decision by the Supreme Court, people have no expectation of privacy when dialing phone numbers. In other words, the FISC opinion concludes that hundreds of millions of phone users forfeit their Fourth Amendment rights because they "voluntarily conve[y] [metadata] information to the telephone company," and that when users sign a phone contract, they therefore "assum[e] the risk that the company would reveal [the metadata] to the police."
This rationale relies on direct quotations from the 1979 Supreme Court case Smith v. Maryland, where police - without seeking a warrant - required a local phone company to install a pen register device on a criminal suspect's phone.
Over a 13-day period, police recorded the phone numbers dialed by the suspect and used the information to convict him.
The Supreme Court ruled that the use of a pen register did not constitute a search and was constitutionally permissible under the circumstances.
American Civil Liberties Union staff attorney Patrick C. Toomey told The Washington Post that Smith v. Maryland "looked nothing like the NSA's phone-records program, in which the government collects hundreds of millions of Americans' phone records in bulk, indefinitely," he said.
According to the newly-released FISC opinion, Verizon's petition "arises entirely from" a December decision from the District Court of the District of Colombia, in which Judge Richard Leon ruled that the government's metadata collection program violates the Fourth Amendment to the US Constitution, which protects the population from "unreasonable searches and seizures."
In his opinion in Klayman v. Obama, Judge Leon explained the fallacious legal rationale provided by the government to justify its massive global surveillance operation. The case before Leon, Klayman vs. Obama, was filed by a conservative activist and grew out of revelations published by the Guardian last summer that detailed wide and pervasive domestic surveillance by the US government, including the collection of phone metadata from virtually every American phone customer.
"I cannot imagine a more 'indiscriminate' and 'arbitrary' invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval," wrote Judge Richard J. Leon. "Surely, such a program infringes on 'that degree of privacy' that the founders enshrined in the Fourth Amendment."
Leon ordered the NSA's surveillance to cease but put a stay on his ruling to allow the government to appeal.
Lawyers for Verizon wrote that their petition for an explanation from the court "arises entirely" from Leon's order, which "for the first time" questioned the legality of collecting such metadata in bulk.
They also wrote in the petition that the company "has always acted in good faith" when complying with the court's orders and would continue to do so.
It seems that Verizon filed its petition not as a defender of democratic rights, but as a formality that the company hopes will ensure its own legal immunity, according to the wsws.org reports.
Meanwhile, senior administration officials told The New York Times that the American government wants to end mass metadata collection of mobile phone records by the NSA, and let the phone companies store that data instead.
Phone records will be held for 18 months, they suggested, rather than the NSA's claimed hold period of five years.
In addition, when the intelligence agencies want to investigate a specific number, each individual monitoring request will have to be approved by a judge, rather than the yearly blanket approval given currently.