On Monday a secret US tribunal ruled that the National Security Agency is free to continue its bulk collection of American citizens’ phone metadata for at least another six months – overruling a decision made by Congress just one month ago – which had voted to terminate the collection of US citizens phone data.
The decision made by Congress to not extend the controversial Section 215 of the Patriot Act when it expired on 1 June had been welcomed as something of a win for privacy activists, who felt that at least now phone conversation metadata would be free from the NSA’s bulk collection program.
Unfortunately, the decision that was made on 2 June, when President Obama signed in the USA Freedom Act, has now been overruled, meaning that US citizens are right back at square one (for at least 6 more months). The NSA is now free to continue total capture of metadata, as it has been doing all along, a fact that will no doubt have ex-head of the NSA and CIA, Michael Hayden, once more mocking privacy conscious US citizens.
The reason for the quick turnaround is due to provisions signed into the USA Freedom act to allow for a smooth transition between current methods of gathering metadata, and the new restricted provisions. These would have forced the NSA to seek permission from the Foreign Intelligence Surveillance (FISA) Court before gathering each bit of phone metadata. This smooth transition was given a six-month period, during which the NSA was expected to gradually reduce down the bulk collection of phone metadata.
In order for the continued collection of metadata during this six-month transitional period to be legal, the government had to gain permission from the FISA Court. It is during this hearing, on Monday, that Judge Michael Mosman ruled that a decision made by the Second Circuit Court of Appeals in Manhattan in May (which challenged the Patriot Act’s right to spy on Americans in the first place) was incorrect. Judge Mosman commented during the trial that he ‘respectfully disagrees with that court’s analysis, especially in view of the intervening inaction of the USA Freedom Act.’
With the appellate court’s decision about NSA bulk collection of phone metadata set aside, the FISA court (which has approved the snooping program a whopping 49 times at 3 month intervals) agreed with the Obama administration, and 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.’
For now then, the NSA will continue with the controversial program that was first revealed by whistleblower Edward Snowden: collecting from telecoms companies the phone numbers of both parties in a call, calling card numbers, the length and time of calls, and the international mobile subscriber identity (ISMI) number for mobile callers. The NSA says it only collects this data in order to query it (should it need to) in order to combat terrorism, and then only if one of the callers was abroad at the time of making the call.
Under the USA Freedom Act that Obama signed, the bulk of phone metadata is supposed to remain with the telecoms companies and can only be accessed with the FISA Court’s agreement. Monday’s ruling means that for six more months the NSA has been granted that permission. What happens after that is anyone’s guess, but we would not be surprised if something happens during the next six months that allows the FISA Court to once more extend the NSA’s privilege to bulk collect phone metadata in the name of national security.