Bulk Phone Surveillance Lives Again, to Die in a More Orderly Fashion in Five Months

By Dan Froomkin, The Intercept

01 July 15

federal judge with the top-secret surveillance court on Monday breezily reinstated the NSA bulk domestic surveillance program that was temporarily halted a month ago, allowing the agency to go back to hoovering up telephone metadata for five months while it unwinds the program for good.

“Plus ça change, plus c’est la même chose,” Foreign Intelligence Surveillance Court Judge Michael W. Mosman wrote in his ruling, using the French phrase that means “the more things change, the more they stay the same” to summarize the legislative and judicial back-and-forth that led to the temporary reinstatement.

By failing to agree on how to reauthorize certain sections of the Patriot Act, the Senate on May 31 engaged in a rare act of rebellion against the surveillance state, forcing the National Security Agency to shutter the program that had collected telephone metadata — information about who called who, and for how long — for more than a decade, until NSA whistleblower Edward Snowden disclosed its existence in 2013.

Two days later, however, the Senate passed a milquetoast surveillance reform bill that ordered the bulk collection program phased out by November 29, to be replaced by one in which the NSA has to request specific records, and explain why.

That led to Monday’s paradoxical decision to revive bulk collection so it can die again, theoretically in a more orderly fashion.

In his decision, Mosman also flippantly dismissed a major appellate court ruling in May that the program was illegal. The Second Circuit Court of Appeals ruled that Section 215 of the Patriot Act, which was the government’s legal cover for bulk collection, didn’t authorize any such thing. The decision hinged on the common-sense conclusion that when the Patriot Act gave the government power to obtain phone records “relevant to an authorized investigation,” that wasn’t power to collect all phone records everywhere.

“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,” Mosman wrote. “To a considerable extent, the Second Circuit’s analysis rests on mischaracterizations of how this program works and on understandings that, if they had once been correct, have been superseded by the USA FREEDOM Act.”

Although his attempts to explain how the Second Circuit was wrong were murky, Mosman was clear on the point that the appellate court’s chief concern — that Congress had never intended for the world “relevant” to be interpreted so broadly — was now moot. That’s because Congress had, through the Freedom Act, knowingly approved giving it a six-month extension.

Sen. Ron Wyden, D-Ore., criticized the decision. “I see no reason for the Executive Branch to restart bulk collection, even for a few months,” he said in a statement. “This illegal dragnet surveillance violated Americans’ rights for fourteen years without making our country any safer.”