FISA court says NSA justified and blames tech companies

The Foreign Intelligence Surveillance Court on Tuesday offered its most extensive public explanation for why it has allowed the government to keep records of all Americans’ phone calls, releasing a previously classified opinion in which it said the program was constitutional and did not violate Americans’ privacy rights.
In a 29-page opinion that quoted the N.S.A. director, Keith Alexander, as saying the leaks had caused “significant and irreversible damage” to national security, Judge Claire V. Eagan, a federal judge in the Northern District of Oklahoma, declared that the program was lawful. So, she wrote, any decision about whether to keep it was a political question, not a legal one.
The opinion by Judge Eagan — a 2001 appointee of President George W. Bush who was assigned to the surveillance court by Chief Justice John G. Roberts Jr. this year — also noted that no telecommunications company had invoked its legal right to object to turning over its customers’ calling records to the government.
“To date, no holder of records who has received an order to produce bulk telephony metadata has challenged the legality of such an order,” she wrote.
Jameel Jaffer, a senior attorney at the American Civil Liberties Union, called the opinion “completely unpersuasive,” criticizing it for failing to mention a landmark privacy case decided by the Supreme Court last year and portraying its statutory analysis as “equally weak. On the whole, the opinion only confirms the folly of entrusting privacy rights to a court that hears argument only from the government,” he said.
Judge Eagan also agreed that the government has legal authority to collect all calling records from phone companies under a provision of the Patriot Act that allows it to obtain business records deemed “relevant” to an investigation; and that members of Congress had had an opportunity to learn how the Patriot Act was secretly being interpreted before lawmakers reauthorized the law.
The program traces its origins to one aspect of the Bush administration’s expansion of surveillance outside statutory or judicial frameworks after the terrorist attacks of Sept. 11, 2001. It was later brought under the authority of the surveillance court and linked to the Patriot Act.
Last week, the government released documents by another judge on the Foreign Intelligence Surveillance Court related to a 2009 reprimand of the security agency for violating the rules and for misleading the court about how it was using the database. It had come to light that the agency was automatically comparing each day’s fresh batch of phone data with an “alert list” of thousands of numbers its analysts had flagged, only about 10 percent of which met the standard of the court-imposed rules.
“The court is aware that in prior years there have been incidents of noncompliance with respect to N.S.A.’s handling of produced information,” Judge Eagan wrote.

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