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06.01.14 The Chicago Council of Lawyers Urges that NSA Cease Gathering Bulk Telephonic Metadata, but Instead Obtain Prior Court Approval to Obtain Limited Metadata related to a Targeted Telephone Number.

**The Chicago Council of Lawyers Urges that NSA Cease Gathering Bulk Telephonic Metadata, but Instead Obtain Prior Court Approval to Obtain Limited Metadata related to a Targeted Telephone Number.

David Melton and Gordon Waldron

I. Introduction**

The Chicago Council of Lawyers on May 19, 2004 recommended that the National Security Administration (NSA) stop gathering bulk telephone metadata. Instead, NSA should be required to obtain prior approval from the court established by the Foreign Intelligence Surveillance Act (FISA) to obtain limited metadata related to a targeted telephone number. The Council also adopted three recommendations to improve the operation of the FISA court. A later article describes those recommendations.

Currently NSA, with approval of the FISA Court, obtains each day from telephone companies metadata (phone number of caller and person called; date; and length of call), on millions of Americans’ phone calls. It keeps that data for five years. It also periodically asks the FISA Court for authority to query the database as to particular persons. The FISA Court routinely allows it to obtain metadata as to (i) all the telephone numbers that the targeted phone was in contact with (calls made to and from the targeted phone; (ii) all the numbers those persons were in contact with, and (iii) all the numbers those persons were in contact with. That can be hundreds of thousands of telephone numbers searched. For instance, if the targeted phone number was in contact with 75 numbers, and those numbers were in contact with 75 other numbers, and those numbers were in contact with 75 others, then NSA could obtain from the data base metadata as to 75 x 75 x 75, or 421,875 phone numbers.

President Obama has proposed that NSA stop gathering the metadata, and instead be required to obtain FISA court permission to view telephone company metadata on particular individuals. He also proposed that telephone companies be required to keep such metadata (which they routinely generate) for 18 months, which is their current practice. Finally, the President proposed that requests for metadata be limited to phone numbers the targeted person was in contact with, and the numbers those persons were in contact with. (In the above example: 75 x 75 = 5625 numbers.)
The Chicago Council of Lawyers supports those proposals because NSA’s gathering of telephone metadata on millions of Americans’ phone calls each day is a massive and illegal massive invasion of privacy and because the data has not been critical in thwarting terrorist attacks.

A. Invasion of Privacy

Because telephone metadata can reveal personal information, people have a reasonable expectation that the data be kept private. Such information can, as Justice Sotomayor observed in another context, reveal “a wealth of detail” about an individual’s “familial, political, professional, religious, and sexual associations.” It can reveal calls “to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour-motel, the union meeting, the mosque, synagogue or church, the gay bar, and on and on.”

B. Illegality

The secret FISA court has wrongly ruled that Section 215 of the Patriot Act authorizes NSA to obtain the telephone metadata on millions of Americans on a daily basis. Section 215 authorizes the FBI to apply to the FISA court for an order directing a third party to produce materials that are relevant to an authorized investigation to obtain foreign intelligence information or to protect against international terrorism or clandestine intelligence activities. The government has argued that collecting the telephonic metadata records of every American and maintaining that data for five years is “relevant” to a terrorism investigation because at some future time it might want to search those records. “In other words, your and my phone numbers are ‘relevant,’ not because we have any connection to terrorism, but solely because NSA might someday find it useful to search them.” This overly expansive reading of Section 215 would apply as well to emails, bank accounts, credit cards, car and hotel room rentals, books borrowed from the library and web sites visited. See Can Privacy by Saved,” David Cole, New York Review of Books, March 6, 2014.
**C. NSA’s Telephonic Metadata Collection Program has not Thwarted Terrorist Attacks ** The federal Privacy and Civil Liberties Oversight Board (PCLOB) issued a report in January 2014 (the “PCLOB Report”), which considered extensive information as to the usefulness of NSA’s telephonic metadata queries. The report concluded:

We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. (PCLOB Report, p. 146.)

The Obama administration has also conceded that it has been unable to identify any thwarted attacks that would have succeeded but for the telephonic metadata program. Moreover, administration officials conceded that the utility of the information falls off after two or three years. (New York Times, 3/26/14).

Note

On May 22, 2014, the House of Representatives passed and sent to the Senate the USA Freedom Act (HR 3361). Section 103 is titled “Prohibition On Bulk Collection Of Tangible Things” and provides, “No order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term . . .” Section 107 defines the phrase “ specific selection term” as “ a discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the Government to limit the scope of the information or tangible things sought pursuant to the statute authorizing the provision of such information or tangible things to the Government.’’

Section 101 deals with requests for “call detail records.” That term is defined in Section 107 to include “originating or terminating telephone number” or “the time or duration of a call,” but does not include the contents of a communication, the name, address or financial information of a customer, or cell site location. Section 101 provides that in the case of an application for the production of call detail records relating to an authorized investigation (other than a threat assessment) conducted to protect against international terrorism, the government must present a statement of facts showing that there are reasonable grounds to believe that the call detail records sought to be produced based on a specific selection term are relevant to such investigation; and that there are facts giving rise to a reasonable, articulable suspicion that such specific selection term is associated with a foreign power or an agent of a foreign power.

Section 102, however, authorizes the attorney general to direct the production of tangible things in an emergency, provided that within 7 days he makes and application the FISA court.