National Security - Telephony Metadata Collection - White Paper Argues Metadata Collection Is Legal under the USA Patriot Act

Harvard Law Review, April 2014 | Go to article overview

National Security - Telephony Metadata Collection - White Paper Argues Metadata Collection Is Legal under the USA Patriot Act


NATIONAL SECURITY--TELEPHONY METADATA COLLECTION--WHITE PAPER ARGUES METADATA COLLECTION IS LEGAL UNDER THE USA PATRIOT ACT.--ADMINISTRATION WHITE PAPER: BULK COLLECTION OF TELEPHONY METADATA UNDER SECTION 215 OF THE USA PATRIOT ACT (2013), archived at http://perma.cc/8RJN-EDB7.

On June 5, 2013, the Guardian reported that the National Security Agency (NSA) has been collecting "the communication records of millions of US citizens ... indiscriminately and in bulk." (1) The NSA collects "unique identifiers, and the time and duration of all calls." (2) This revelation about the telephony metadata program was met with outrage by many. (3) Recently, the Obama Administration responded to this outrage by releasing a White Paper outlining the legal justifications for the program. (4) The White Paper argues that the program is legal under section 215 of the USA PATRIOT Act (5) (Patriot Act) because repositories of Americans' phone records are "relevant" to discrete authorized investigations under this provision. However, despite the Administration's claim that relevance is construed broadly in other civil and criminal contexts, the cases the White Paper cites are distinguishable because they involved much more narrowly focused data collection than the NSA's program does. Furthermore, the White Paper's argument that Congress intended to give section 215's relevance standard a broader meaning than similar standards in other contexts lacks textual support. Since Congress was not fully informed of the program when it renewed section 215, the White Paper's argument that Congress acquiesced to the program stretches implied ratification doctrine. While President Obama recently suggested that the government might start having third parties hold the data, (6) section 215's relevance standard could still be violated by the government's compelled collection of this data. As a result, the government should either alter the program to conform with section 215 or Congress should change section 215's language to authorize broader data collection.

In 2006, the Foreign Intelligence Surveillance Court (FISC) first authorized the telephony metadata program under section 215 of the Patriot Act. (7) The program was designed to detect threats, helping the government "rapidly identify" terrorist operatives and networks. (8) Under the program, the Federal Bureau of Investigation (FBI) obtains prospective orders from the FISC directing telecommunications companies to provide their users' communication records, which the NSA stores and analyzes. (9) These records include information "about what telephone numbers were used to make and receive ... calls, when the calls took place, and how long the calls lasted." (10) The program does not involve the collection of information about the content of calls. (11) In order to access the information gathered, an NSA official must find that there is a "'reasonable, articulable suspicion' that a seed identifier used to query the data ... is associated with a particular foreign terrorist organization." (12) Due to this requirement, while the government gathers vast amounts of data from telecommunications providers, "only a tiny fraction of the bulk telephony metadata records stored at the NSA are authorized to be seen by an NSA intelligence analyst." (13)

The White Paper describes the program and offers statutory and constitutional defenses of its legality. To begin, the White Paper analyzes the program's compliance with section 215 of the Patriot Act. Under section 215, the FISC may issue an order for the "production of any tangible things (including books, records, papers, documents, and other items) for an investigation ... to protect against international terrorism." (14) To receive an order, the government must show that there are "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation." (15)

After concluding that telephony metadata records are "tangible things" under section 215 (16) and are sought for authorized investigations, (17) the White Paper moves to relevance, arguing that the telephony metadata program collects records that are likely "relevant to an authorized investigation. …

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