The Foreign Intelligence Surveillance Court (FISC) has given the green light to the National Security Agency (NSA) to resume its controversial bulk collection of Americans' telephone data.
The decision is in stark opposition to a ruling issued in May by the U.S. Court of Appeals for the Second Circuit in Manhattan declaring that the agency's overarching telephone records collection program is unlawful. Judge Gerard E. Lynch wrote in his ruling that the NSA has distorted the meaning of Section 215 of the Patriot Act, the law that supposedly authorizes the program, to allow it collect telephone data in "staggering" volumes in the hopes of finding local links to terrorists "at some future point."
But Judge Michael Mosnan of the FISC says the appeals court does not understand how the program works.
"To a considerable extent, the Second Circuit's analysis rests on mischaracterizations of how this program works and on understandings that, if they had once been correct, have been superseded by the USA Freedom Act," writes (pdf) Judge Mosnan in his ruling.
A day the expiry of the Patriot Act, President Barack Obama signed into law the Freedom Act, which still authorizes the NSA to collect telephone data but severely restricted its access by requiring the use of a "specific selection term" to obtain records from the telephone companies. Only the collection of data about who called who, when and for how long will be allowed, as it was under the Patriot Act.
The Freedom Act also gave the NSA and other intelligence agencies a 180-day period to allow them to transition into the new collection system, a provision that seems to be a loophole being used to authorize the agency to continue with its bulk collection of data.
"In passing the USA Freedom Act, Congress clearly intended to end bulk data collection of business records and other tangible things," Judge Mosman wrote. "But what it took away with one hand, it gave back - for a limited time - with the other. Congress could have prohibited bulk data collection under Title V of FISA effective immediately upon enactment of the USA Freedom Act, as it did under Title IV. Instead, after lengthy public debate, and with crystal clear knowledge of the fact of ongoing bulk collection of call detail records, as repeatedly approved by the FISC under section 501 of FISA, it chose to allow a 180-day transitional period during which such collection could continue."
The once top-secret program began in 2011 under the Bush administration as part of its measures to counter terrorism after the September 11 attacks. In 2013, it was unveiled to the public when Edward Snowden released a massive trove of government records detailing numerous secret surveillance programs that undermine the security and privacy of most Americans.
Speaking to The Guardian earlier this month, Democratic Senator Ron Wyden of the Senate intelligence committee said he saw no reason for the government to continue the program.
"This illegal dragnet surveillance violated Americans' rights for 14 years without making our country safer, and the administration should leave it on the ash heap of history," he said.
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