An August decision by the secret surveillance court that reaffirmed the National Security Agency’s authority to maintain a database of phone metadata was released Tuesday, putting on full display for the first time the reasoning the court has used to authorize the program.
In July, the Wall Street Journal reported that the secret Foreign Intelligence Surveillance Court’s jurisprudence on an NSA phone database hinged largely on its expansive definition of the word “relevance” in Section 215 of the Patriot Act. That report was affirmed by the court ruling released today, which explained how the court came to the conclusion that wholesale collection of telephone data (not including the content of the calls) was “relevant” simply by concluding that a phone database would be helpful to terrorist investigations, in what the court itself admits is a low standard:
Because known and unknown international terrorist organizations are using telephone communications, and because it is necessary to obtain the bulk collection of a telephone company’s metadata to determine those connections between known and unknown international terrorist operatives as part of an authorized investigations, the production of the information sought meets the standard for relevance under Section 215.
Section 215 requires a “statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to the authorized investigation,” and many have interpreted “relevant to the authorized investigation” as showing a more particularized nexus between specific information sought and a specific suspect or suspects. Courts have previously rejected assertions of “relevance” in other contexts where a proposed action would sweep up innocent people’s information.
But as Mark Eckenwiler, who had been the Justice Department’s primary authority on federal criminal surveillance law, told the Wall Street Journal in July, the court interpreted “relevant” to mean “everything.” He said if a federal attorney “served a grand-jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court.”
In a subtle nod to this public criticism, Judge Claire V. Eagan later adds to her latest decision, post-Snowden revelations:
This court recognizes that the concept of relevance here is in fact broad and amounts to a relatively low standard. Where there is no requirement for specific articulable facts or materiality, the government may meet the standard under Section 215 if it can demonstrate reasonable grounds to believe that the information sought to be produced has some bearing on its investigations of the identified international terrorist organizations.
She cites to a 2006 brief in which the government explains “[a]ll of the metadata collected us thus relevant, because the success of this investigative tool depends on bulk collection.”
Eagan goes on to point out that “the low relevance standard is counter-balanced” by the required “minimization procedures” and by the fact that those being asked for phone records can challenge that request through the FISA court.
Part of the “minimization procedure” is that the government must show “reasonable suspicion” in order to query the database for any particular information. As Volokh Conspiracy has pointed out, there are 22 people at the National Security Agency who get to decide whether there is reasonable suspicion for an initial “seed” inquiry. Other limits are later set, including a number of days over which the individual is authorized to use that search term, and periodic FISA Court review.
As to the court’s second point that its decisions may be challenged, Egan herself points out that no phone company or other “record holder” has challenged a court order under Section 215, and that only those record holders — not the individuals whose information is actually being collected and have more at stake in the outcome — are permitted to challenge the court’s order (nor would they know about the order so long as it’s secret).
Lastly, Eagan reasons that Congress must have intended for the “relevance” definition to be this broad, because they were informed that the FISA court had authorized this telephone database, and nonetheless reauthorized these provisions in 2011. What Eagan does not mention is that Sens. Ron Wyden and Mark Udall pushed for the government to reveal publicly how the government was interpreting these provisions, imagining it might sway vigorous congressional debate in Congress. The government declined to do so, and Congress reauthorized the provision amidst controversy, without the benefit of full public knowledge about that meant.
The document is the latest to be released as part of long-running litigation by public interest groups. The FISA court on Friday asked that this and other post-reauthorization FISC rulings to be released, in redacted form. The term “relevance” is one of several to be defined broadly by the court. In another string of decisions, it expanded the definition of “target.”