FISA Court Renews Bulk Collection, for Now

The NSA can collect bulk metadata, at least for the next six months.

That news is despite Congress' passage of the USA Freedom Act, which will eventually either end it or narrow it, depending on whom you ask, and despite a Second Circuit Court of Appeals opinion that the bulk collection program was illegal.

The Foreign Intelligence Surveillance Court approved on Monday an Administration request that it extend the bulk collection authority, pointing out that the USA Freedom Act has a 180-day transition period. So, in the interim, the court said, the bulk collection program is renewed.

The President signed and supported the bill, but he also supported renewing the bulk collection authority in the transition period.

The court said it was clear that the Congress intended to end bulk data collection, but also said that "what it took away with one hand, it gave back — for a limited time — with the other."

"The question is whether the Congress authorized bulk acquisition of call detail records during the interim 180-day period," the FISA court said, concluding, "it has."

As to the Second Circuit's decision, the FISA court it was well aware of the decision in the Clapper case, but said, "Second Circuit rulings are not binding on the FICS, and this court respectfully disagrees with that court's analysis, especially in view of the intervening enactment of the USA Freedom Act."

The opinion was rendered by Judge Michael Mossman, who made it public — FISA court decisions usually aren't — "in light of the public interest in this particular collection and the government's declassification of related materials."

This particular interest stemmed from the leaks by NSA contractor Edward Snowden revealing there was bulk call record collection and prompting major pushback from various quarters, including journalists, legislators, and privacy advocates.

The court decision was first reported by National Journal.

"As in past primary orders in effect since February 2014, and consistent with the president’s direction, the court’s new primary order requires that during the transition period, absent a true emergency, telephony metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization.  In addition, the query results must be limited to metadata within two hops of the selection term instead of three."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.