NSA Sidesteps Supreme Court Review of Privacy Issues

Monday, 18 Nov 2013 09:45 PM

By Amy Woods

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The National Security Agency avoided what surely would have been a showdown in the U.S. Supreme Court over the government's collection of "metadata" from every American who talks on the phone.

The justices rejected the case without comment, The Christian Science Monitor reports. At issue was whether the NSA violated federal law -- specifically, the Foreign Intelligence Surveillance Act -- in mining the data.

Now that legal means have been exhausted, the controversial policy, revealed to the public after former NSA contractor Edward Snowden leaked the information, will be left to Congress, which already has two bills related to the policy, and the Obama administration.

The case, brought by the Electronic Privacy Information Center advocacy group, sought  privacy protection from the government's use of technology under the policy.

Other concerns have been raised that the same policy is being used to track emails and text messages in addition to phone calls. A recent New York Times report said data from international money transfers was being monitored by the CIA.

The plaintiff in the Supreme Court case, Marc Rotenberg, executive director of the advocacy group, argued that FISA does not allow metadata collection but offers no means by which anyone can sue to protect his privacy.

"The ongoing collection of the domestic telephone records of millions of Americans by the NSA, untethered to any particular investigation, is beyond the authority granted by Congress to the [secret intelligence court] under [FISA]," Rotenberg said.

According to Solicitor General Donald Verrilli, any appeal to the FISA court is limited to those ordered to provide information to the government, and therefore the advocacy group lacked the authority to bring the case.

Verrilli also said the intelligence court rightly defended the NSA's actions.

"As of Oct. 1, 2013, 14 different judges of the FISA, on 34 separate occasions, have approved . . . orders directing telecommunications-service providers to produce records in connection with the [metadata-collection program,]" he said.

By definition, metadata does not contain recorded conversation, but rather, detailed information about where and when calls are made, who is placing and receiving them, and personal information about the lives of those being tracked. The goal is to uncover terrorist plots before they can be carried out.

Government officials think such bulk collection poses no threat to the privacy of Americans because the metadata is searched only when a "reasonable, articulable suspicion" exists that it is associated with a terrorist network.

With more than 317 million cellphones in use in the United States, critics of the NSA policy warn its continuation will result in additional metadata collection that could include emails, credit-card use, online banking and other electronic transactions.

"Under the government's theory, all email metadata, location metadata, financial metadata and Internet metadata would also be relevant to an authorized investigation," Rotenberg said.

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