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Verizon Challenged the NSA's Phone Data Collection Program and Lost

After a judge ruled that PRISM may be unconstitutional, the phone company asked a secret court to vacate an order to turn over data.

National Security Agency / Wikipedia

One of the phone companies participating in the US National Security Agency’s call data collection program challenged its legality before the secret Foreign Intelligence Surveillance Court early this year. But according to newly declassified court filings, that challenge was rejected.

The company was Verizon, The Washington Post reported Friday. And it sought to challenge the NSA’s call data collection efforts in the wake of a ruling by a US District Court judge saying that they were likely unconstitutional and violated the Fourth Amendment.

The court’s three-judge panel rejected that argument saying that the US Supreme Court had ruled in 1979 that collecting data about phone calls — the time at which they were made and the numbers dialed — isn’t considered a search. Therefore Americans have no reason to expect that the numbers they dial are private, so the Fourth Amendment doesn’t apply. The court ordered Verizon to continue furnishing the NSA with call data.

The challenge arose as the result of a December 16, 2013 ruling by a judge hearing a lawsuit challenging the legality of the NSA surveillance program known as PRISM. That program was first revealed last summer as a result of leaks by former NSA contractor Edward Snowden.

In that case, Larry Klayman, a conservative activist, and Charles and Mary Strange, parents of an NSA cryptologist killed in Afghanistan, argued that PRISM violates the First, Fourth and Fifth Amendments of the Constitution. Their arguments got a big shot in the arm when Richard Leon, the judge hearing the case, wrote in a 68-page opinion that the program “almost certainly” violates the Fourth Amendment. He also challenged the government to justify PRISM’s existence, asking if the program is effective. His point: If PRISM isn’t effective, then it shouldn’t be necessary.

The government has argued that PRISM helps it identify possible terrorist threats more quickly than it would in other ways. The problem with that argument is that the government hasn’t yet offered any examples where this has been the case. As Judge Leon wrote: “The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack or otherwise aided the government in achieving any objective that was time-sensitive in nature.”

In what turns out to be a pretty strong critique of the Leon opinion, FISA court judge Rosemary Collyer wrote: “This court finds Judge Leon’s analysis in Klayman to be unpersuasive and concludes that it provides no basis for vacating or modifying…” the NSA’s order to produce the data. Collyer’s opinion relied on a 1979 case which defines government search as when the government violates a person’s reasonable expectation of privacy or “physically intrudes on a protected area for the purpose of gathering information.”

Collyer cites Leon saying that even in the 35 years since that case, phones have changed, but the metadata the NSA is seeking — information about numbers dialed and the time and length of a call — hasn’t. In other words, the standard set back in 1979 still applies: “Properly viewed on a user-by-user basis, the NSA Telephony metadata program is consistent with Supreme Court precedent which time and technology have not affected.”

The FISA court’s ruling has no bearing on the Klayman case, which is still working its way through the courts.

Here’s the ruling.

Fisa Court Challenge Ruling

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