Data Privacy and Cybersecurity

Surveillance Decisions Could Trigger Friction Between Courts

As it greenlights continued phone metadata collection, the FISA court says it isn’t bound by Second Circuit appeals court decisions.

Surveillance Decisions Could Trigger Friction Between Courts
Getty Images / Alex Wong

This week the Foreign Intelligence Surveillance Court decided the NSA’s bulk collection of phone metadata in the U.S. can continue — despite an appeals court ruling that found the practice unconstitutional.

The USA Freedom act let metadata collection continue for six months while the government transitions to a new system, in which telecom companies will hold onto metadata and give it to the government if it gets a warrant. (Video via CBS)

But Justice Department lawyers reportedly asked FISA to reauthorize collection just hours after the act went into effect. (Video via The Justice Department)

That's despite a May ruling from the Second Circuit Court of Appeals that found there was no constitutional justification for the collection of bulk metadata.

In his decision, FISA judge Michael Mosman said it’s because, “Second Circuit rulings are not binding” to FISA, “and this court respectfully disagrees with that court’s analysis, especially in view of the intervening enactment of the USA Freedom Act.”

Mosman writes by not including wording in the USA Freedom Act to explicitly ban metadata collection, Congress implied it was allowed.

“Instead, after lengthy public debate, and with crystal-clear knowledge of the fact of ongoing bulk collection of call detail records … it chose to allow a 180-day transitional period during which such collection could continue.”

That same decision could have weakened the Second Circuit court’s ruling. The New York Times notes it “remains unclear” if the Second Circuit ever decided that grace period was similarly unconstitutional.

The American Civil Liberties Union says it will be going to the Second Circuit Court for an official injunction against metadata collection. If it’s granted, the Second Circuit and FISA courts might have to turn to the Supreme Court for resolution.

As it stands, metadata collection will continue until November 29, at which point telecoms will take over its management.

This video includes images from Getty Images, Creative Stall / CC BY 3.0, Thomas Helbig / CC BY 3.0 and Lucas Butt / CC BY 3.0. Music by Planet Boelex / CC BY NC ND 3.0.