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Obama’s Absurd Interpretation of Section 215

As part of an effort to quell concerns about the federal government’s data mining programs, the Obama administration has released a white paper explaining why they think they have the legal authority to get telephone metadata on every single cell phone user in the country. To call that rationale absurd is to engage in flattery. It says, in part:

This telephony metadata is important to the Government because, by analyzing it, the Government can determine whether known or suspected terrorist operatives have been in contact with other persons who may be engaged in terrorist activities, including persons and activities within the United States. The program is carefully limited to this purpose: it is not lawful for anyone to query the bulk telephony metadata for any purpose other than counterterrorism, and Court-imposed rules strictly limit all such queries. The program includes internal oversight
mechanisms to prevent misuse, as well as external reporting requirements to the FISC and Congress.

Multiple FISC judges have found that Section 215 authorizes the collection of telephony metadata in bulk. Section 215 permits the FBI to seek a court order directing a business or other entity to produce records or documents when there are reasonable grounds to believe that the information sought is relevant to an authorized investigation of international terrorism. Courts have held in the analogous contexts of civil discovery and criminal and administrative investigations that “relevance” is a broad standard that permits discovery of large volumes of data in circumstances where doing so is necessary to identify much smaller amounts of information within that data that directly bears on the matter being investigated. Although broad in scope, the telephony metadata collection program meets the “relevance” standard of Section 215 because there are “reasonable grounds to believe” that this category of data, when queried and analyzed consistent with the Court-approved standards, will produce information pertinent to
FBI investigations of international terrorism, and because certain analytic tools used to accomplish this objective
require the collection and storage of a large volume of telephony metadata. This does not mean that Section 215 authorizes the collection and storage of all types of information in bulk: the relevance of any particular data to investigations of international terrorism depends on all the facts and circumstances. For example, communications
metadata is different from many other kinds of records because it is inter-connected and the connections between individual data points, which can be reliably identified only through analysis of a large volume of data, are particularly important to a broad range of investigations of international terrorism…

To be sure, the cases that have been decided in these contexts do not involve collection of data on the scale at issue in the telephony metadata collection program, and the purpose for which information was sought in these cases was not as expansive in scope as a nationwide intelligence collection effort designed to identify terrorist threats. While these cases do not demonstrate that bulk collection of the type at issue here would routinely be permitted in civil discovery or a criminal or administrative investigation, they do show that the “relevance” standard affords considerable latitude, where necessary, and depending on the context, to collect a large volume of data in order to find the key bits of information contained within.

Jeffrey Rosen at the New Republic points out just how ridiculous this legal argument is:

This “to be sure” is one for the ages. Far from authorizing the warrantless fishing expeditions into millions of records, Congress in amending Section 215 meant explicitly to forbid what the Justice Department now seeks to justify. As the Electronic Privacy Information Center notes in a brief filed last week with the Supreme Court, both Congressional supporters and opponents of Section 215 explicitly interpreted the “relevance” language to limit bulk collection of data, not to permit it. On July 17, during a House judiciary committee hearing, Representative James Sensenbrenner, the author of section 215, said that Congress amended the law in 2006 to impose the relevance requirement in “an attempt to limit what the intelligence community could be able to get pursuant to Section 215.” And during the debate over the 2006 amendments, Sen. Ron Wyden and others stressed that the relevance standard would address “concerns about government ‘fishing expeditions.’”

Moreover, as the EPIC brief makes clear the government’s claim that all telephone metadata on all U.S. persons is “relevant to authorized investigation” is simply not credible because it eliminates the relevance standard in two ways. First, it applies the relevance requirement only after data are collected, not before, allowing the mass collection that Congress meant to forbid. Second, it makes the remarkable claim that all telephone metadata is relevant under Section 215 because somewhere within that vast dataset there may be individual data elements that are, in fact, relevant.” In other words, the government argues that the FISC can authorize the collection of data from hundreds of billions of Verizon calls, even though “only a small portion of the data that is collected is ever actually reviewed, because the vast majority of that data is never going to be responsive to one of these terrorism- related queries.”

As the EPIC brief makes clear, the government’s practice of collecting data on hundreds of billions of calls each year and then later, unilaterally, deciding what is actually relevant (fewer than 300 last year) is not permitted by section 215. Moreover, given the scope of material covered by section 215, if it were permitted, it would allow the government to sweep up almost any data on the basis that some of it might prove relevant later. For example, the argument, if accepted, would allow the government to seize billions of medical records or book or library records without a warrant—the textbook definition of an unconstitutional fishing expedition. The White Paper’s attempt to disavow this possibility boils down to: trust us. Here is the legalese: “This conclusion does not mean that the scope of Section 215 is boundless and authorizes the FISC to order the production of every type of business record in bulk—including medical records or library or book sale records, for example,” the White Paper notes. “Although there could be individual contexts in which the Government has an interest in obtaining medical records or library records for counterterrorism purposes, these categories of data are not in general comparable to communications metadata as a means of identifying previously unknown terrorist operatives or networks.” In other words, we don’t think bulk collection of medical records is necessary to stop terrorism, but if we did, we could collect it.

This is sophistry at its worst and most dangerous. The Obama administration is interpreting a legal text intended to limit its authority to collect data on innocent people who have nothing to do with terrorism in a way that makes it disappear and gives them unbounded authority to do so.

Comments

  1. eric says

    This telephony metadata is important to the Government because, by analyzing it, the Government can determine whether known or suspected terrorist operatives have been in contact with other persons who may be engaged in terrorist activities, including persons and activities within the United States

    You don’t need to collect everyone’s metadata for that; a perfectly normal request for a warrant and search will do it.

    THIS is probably fine with most people:
    NSA: “We have evidence that Bob in Afghanistan is a terrorist. Could we see all the phone records of people who called Bob or were called by Bob?”
    Judiciary: “Sure, you can.”

    THIS is what everyone objects to:
    NSA: “We don’t know who the terrorists are. Could we see all the phone records of all the people?”
    Judiciary: “Oh, sure, what the heck.”

  2. says

    The program is carefully limited to this purpose: it is not lawful for anyone to query the bulk telephony metadata for any purpose other than counterterrorism, and Court-imposed rules strictly limit all such queries. The program includes internal oversight mechanisms to prevent misuse, as well as external reporting requirements to the FISC and Congress.
    INTERNAL oversight mechanisms? I feel safer already.

    It is not lawful for anyone to query in bulk…? How will find our about these unlawful uses? Will the NSA announce it is violating the law? Or we will have to wait for another whistleblower to reveal it? Then this whistleblower can be prosecuted and the special pleading can begin explaining how this violation was not REALLY a violation. (Of course the actual violator will be free from any charges)

    I cannot wait for all this safety!!

  3. Don Williams says

    1) Anyone familiar with the intelligence community can see the massive and intentional dereliction of duty on the part of the News Media on this subject. It is no wonder Snowden went to the BRITISH newspaper Guardian with his story.

    2) The story that the US News Media is EVADING is: WHAT alternative did Snowdon –or any other whistleblower — have if they see illegal activities that endanger the Constitution and American liberties?

    3) You would think a cleared citizen could complain to his Representative but that is wrong. My Senator Arlen Specter tried to pass such a law but President Bill Clinton was adamently against it. Instead, he insisted on a Orwellian “Whistleblowers Protection Act” which requires the cleared employee to FIRST report wrongdoing to the Executive Branch, WAIT for 30 days and THEN only report to Members of the Senate and House Intel Oversight committees. Who can blow off the employee with impunity because he is not in their district and can’t hold them accountable as a constituent. Plus as soon as he tells the Executive Branch that he is going to snitch his career is over — and his family is facing poverty. Employees of intel CONTRACTORS like Snowden have no civil service protections — they are employed “AT WILL” and can be fired “AT WILL”.

    4) The OTHER thing that is not being mentioned is that Members chosen for the Intel Committees are hardly demigods. Look at Randy Cunningham –sent to prison for bribery:

    http://en.wikipedia.org/wiki/Randy_Cunningham

    Or Jane Harman — who did not let out a PEEP in opposition to Cheney’s false case for the invasion of Iraq.
    http://en.wikipedia.org/wiki/Jane_Harman#AIPAC_controversy

    5) And if you want to see WHY — and WHY Obama is following DIck Cheney’s lead on this subject, look at Wikipedia’s article on Haim Saban. Several Israel Lobby billionaires basically own the Democratic Party and are feeling Al Qaeda’s crosshairs on their back. If we ever get a decent press in this country, Al Qaeda is not going to be their only concern –and they know it.

  4. iknklast says

    The only people I ever talk to on my cell phone are my husband, a retired librarian (very subversive, I realize, and with lots of access to lots of books people shouldn’t be reading) and my father, a Christian fundamentalist who’s biggest joy in life is driving disabled children to the Shriner’s hospital to get free treatment. As a result, my cell phone conversations are very boring to anyone not interested in those things (which is most people). If I have one joy over this, it’s about imagining all those operatives that they pay to listen to mind-numbingly inane or routine conversations. If you’ve ever heard someone on a cell phone conversation (and I’m sure you have!), you’ll know what I mean.

    Overall, it seems to me like such a massive data sweep could actually reduce the possibility of catching terrorists. In that much information, anything that is really useful is likely to get lost.

  5. eric says

    If I have one joy over this, it’s about imagining all those operatives that they pay to listen to mind-numbingly inane or routine conversations.

    What they’re collecting here is metadata; what number you called, for how many minutes, from what phone and location, stuff like that. Not actual content (though I’m sure they look at that too).

    Overall, it seems to me like such a massive data sweep could actually reduce the possibility of catching terrorists.

    I suspect the NSA is using it to try and find terrorist networks rather than individuals. That would be more their thing. That way, when someone is found, they can very quickly determine who else might be involved by looking at the captured person’s network. Metadata is exactly the sort of thing you want if you want to build up a view of who is talking to whom. That’s still illegal search and seizure of citizen data, but its consistent with their mission. The FBI, on the other hand…IIRC there’s evidence that the FBI is simply using the data to bust drug dealers and users, which is in direct contravention of the law.

  6. exdrone says

    If the government is going to intercept all of our phone calls anyways, couldn’t they make themselves useful and put an end to telemarketing calls while they’re at it?

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