Why the NSA can still legally collect your phone data

A secret court has given the National Security Agency legal basis to continue collecting data from Americans’ phone records – temporarily, anyway.

The Foreign Intelligence Surveillance Court, known as the FISC or the FISA court after the 1978 Foreign Intelligence Surveillance Act that created it, ruled late Monday that the NSA can resume its bulk data collection program for at least another five months. The decision potentially pits the FISA court against a federal court of appeals, which previously ruled that Section 215 of the Patriot Act – the provision used to justify the spying program – was illegal.

Here’s what happened:

In May, the American Civil Liberties Union (ACLU) filed a suit against the NSA saying that Section 215 could not be reasonably interpreted to allow the bulk collection of domestic calling records. The US Court of Appeals for the Second Circuit ruled in favor of the ACLU, marking the first time a higher-level court that wasn’t FISA reviewed the NSA surveillance program.

The Christian Science Monitor's Warren Richey noted at the time that the court was simply interpreting Section 215. He added that “lawmakers could render the litigation moot if they address the court’s concerns” or if they unambiguously indicate that they want the NSA to continue the bulk collection of phone records.

On June 1, the program lapsed after Congressional gridlock left Section 215 to expire.

The next day, Congress agreed to revive the provision with the USA Freedom Act, a bill that gave the NSA six months to transition out of its spying program, during which time it could continue collecting data. But Congress failed to include language in the Freedom Act that either contradicted the Second Circuit ruling or authorized collection for the six-month interim – leaving it unclear whether the bulk collection can legally resume.

So when – after President Obama signed the Freedom Act – the administration applied to continue the program for six months, a libertarian and conservative advocacy group contested the program’s legitimacy. In a motion filed in the FISA court, FreedomWorks representatives said the court had no legal authority to allow the program to resume, even for the 180-day transition period.

Thus we come to Monday’s ruling, in which FISA judge Michael W. Mosman dismissed the federal court’s decision and held that the Freedom Act’s six-month interim does apply to the program.

“Second Circuit rulings are not binding on the FISC, and this Court respectfully disagrees with that Court’s analysis, especially in view of the intervening enactment of the USA Freedom Act,” Judge Mosman wrote in the 26-page opinion.

He added that the Second Circuit mischaracterized how the surveillance program works; and even if it had been correct in its interpretations, its decision had now been superseded by the Freedom Act.

“For example, the Second Circuit asserted that the production of call detail records has ‘no foreseeable end point, ’” Mosman wrote. “That is no longer the case: Congress has now ensured that this production will cease no later than Nov. 29, 2015.”

The ACLU on Tuesday said it would ask the Second Circuit to file an injunction against the program, setting up a potential showdown between the two courts. 

But Mosman himself may have put it best: "Plus ça change, plus c’est la même chose," or "The more things change, the more they stay the same," he wrote in his opinion. In other words, because FISA technically has jurisdiction over intelligence programs related to national security, the NSA spying program will probably continue, at least through the interim period.

Still, privacy advocates on the left and the right have begun banding together, pledging themselves to a long fight to protect civil liberties against what they see as excessive government surveillance, cybersecurity reporter Sara Sorcher wrote for The Christian Science Monitor’s Passcode.

Surveillance is a common enemy that cuts across political ideologies and party lines, Josh Withrow, legislative affairs manager for FreedomWorks, told the Monitor.

“Regardless of what you think about social welfare, spending policy, and the national debt, everybody is affected pretty much the same way when the government starts collecting records and surveilling you and violating that essential right to privacy that I think most Americans agree is a natural and constitutional right,” Mr. Withrow said.