The U.S. National Security Agency can temporarily resume its bulk data collection program, according to a Foreign Intelligence Surveillance Court ruling Monday.
Charged with overseeing government spy agencies and their surveillance requests, the secret FISA court sided with Congress’ decision to allow the NSA’s controversial phone metadata collection program to continue for six months after it lapsed June 1.
Congress passed the NSA reform bill USA Freedom Act earlier this month, which dismantled the phone surveillance program as permitted under the now expired Section 215 of the Patriot Act. The new law, however, gave the government a 180-day grace period to continue the bulk surveillance while the NSA transitioned to a new system under which telephone companies keeps phone records and the agency accesses them after getting a court order.
Monday’s order rebuts a federal appeals court decision in May that found the government’s bulk data collection program to be illegal. The U.S. Court of Appeals for the Second Circuit ruled that Section 215 of the Patriot Act contained no legal basis for the NSA’s surveillance of domestic phone calls. FISA Court Judge Michael Mosman denounced the appellate decision as non-binding and incorrect in Monday’s opinion.
The [FISC] is aware that, prior to enactment of the USA FREEDOM Act, the Second Circuit in [American Civil Liberties Union vs. Clapper] rejected the government’s arguments that the call detail records acquired under the NSA program were relevant to an authorized investigation other than a threat assessment…However, Second Circuit rulings are not binding on the FISC, and this Court respectfully disagrees with that Court’s analysis, especially in view of the intervening enactment of the USA FREEDOM Act…
To a considerable extent, the Second Circuit’s analysis rests on mischaracterizations of how this program works and on understandings that, if they had once been correct, have been superseded by the USA FREEDOM Act. For example, the Second Circuit asserted that the production of call detail records has “no foreseeable end point.” That is no longer the case: Congress has now ensured that this production will cease no later than November 29, 2015.
While USA Freedom did end bulk surveillance as revealed in 2013 by leaked NSA documents, it is considered a compromise rather than complete reform, gaining bipartisan support, privacy groups and the White House. Surveillance concerns remain as USA Freedom only addressed the collection of phone records, but left out Executive Order 12333, Sections 701 and 702 of the Patriot Act, which give the government broad surveillance powers including access to internet data.