FISA Court Reveals Why It Allowed NSA to Log Americans’ Calls, Claims Telecoms Didn’t Protest

Thursday, September 19, 2013
Judge Claire V. Eagan

The United States’ secret intelligence court has revealed why it has repeatedly authorized the National Security Agency (NSA) to collect records of all Americans’ phone calls. In the same public disclosure, the Foreign Intelligence Surveillance Court (FISC) also said that telecommunications companies involved in the data collection have never protested their having to comply with the NSA’s requests.


These two discoveries were contained in a previously classified court opinion by FISC Judge Claire V. Eagan, who presides in the Northern District of Oklahoma.


In a ruling dated August 29, Eagan said the NSA’s domestic phone-call program was deemed constitutional and did not violate Americans’ privacy rights.


Eagan, who was appointed to the federal bench by President George W. Bush, reached this conclusion using many of the same legal arguments embraced by the Obama administration in defending the program, according to The New York Times.


Those arguments state that the metadata collected by the NSA consists of phone numbers and time and duration of calls, which Eagan says are not protected by Fourth Amendment privacy rights because they don’t involve eavesdropping on the content of calls.


The judge also wrote that the government can collect all calling records from phone companies under a provision of the Patriot Act (pdf) that authorizes the obtaining of business records deemed “relevant” to an investigation. The government need only show that call records are relevant to investigations into potential terrorist attacks, she explained.


Eagan also put the onus on Congress for its support of the Patriot Act, saying that its members had every opportunity to find out how that law was secretly being interpreted before they re-authorized it.


The judge dismissed the NSA’s past “incidents of noncompliance”—a cause of outrage on the part of the agency’s critics—by saying “those issues were resolved.”


Jameel Jaffer, a senior attorney at the American Civil Liberties Union, disagreed with Eagan, calling her ruling “completely unpersuasive.” He also criticized it for not mentioning a landmark privacy case, United States v. Jones, decided (pdf) by the U.S. 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,” Jaffer said in a statement.


In her 29-page ruling, Eagan mentioned 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.


Eagan’s ruling is the first to be written on this matter since the secret NSA program was disclosed in June by former NSA contractor Edward Snowden. Whereas previous secret FISC rulings routinely re-authorized the program with little more than a minor reference to its legal underpinning, Eagan’s opinion was written with its eventual public disclosure in mind, according to an unnamed source referenced by the Times. Indeed, she volunteered the release of the document, according to the Justice Department.


“This isn’t a judicial opinion in the conventional sense,” said Jaffer. “It’s a document that appears to have been cobbled together over the last few weeks in an effort to justify a decision that was made seven years ago. I don’t know of any precedent for that, and it raises a lot of questions.”

-Noel Brinkerhoff, Danny Biederman


To Learn More:

Extended Ruling by Secret Court Backs Collection of Phone Data (by Charlie Savage, New York Times)

FISA Court Releases Opinion Upholding NSA Phone Program (by Ellen Nakashima, Washington Post)

U.S. Telcos Have Never Challenged NSA Demands for Your Metadata (by David Kravets, Wired)

Amended Memorandum Opinion (U.S. Foreign Intelligence Surveillance Court)

Senators Decry NSA ‘Ineptitude,’ Call for End to Dragnet Phone Surveillance (by David Kravets, Wired)

Stung by Criticism, FISA Court Judges Ask to Make Public their Decisions (by Matt Bewig, AllGov)

Documents Reveal “Flagrant Violations” of Privacy Rights by Bush-Era NSA (by Noel Brinkerhoff and Danny Biederman, AllGov)           

Left and Right Sue Obama Administration over Indiscriminate Phone Spying (by Matt Bewig, AllGov)


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