FISA court decision on surveillance was the right one

After crashing through a deadline and engaging in days of tension-filled debates on the U.S. Senate floor, the chamber finally came together on June 2 to pass the USA Freedom Act — a bipartisan piece of legislation written with the express purpose of refining the USA Patriot Act and eliminating some of the more controversial provisions in the 14-year old law. Whereas the National Security Agency (NSA) was once able to collect and store the phone records of tens of millions of Americans in order to search for patterns of suspicious communications linked to potential terrorists, the NSA must now ask for a court order before querying a database held by the phone companies. Demanding that Verizon or AT&T produce all of their customers’ records to the NSA is no longer legal. Nor is storing the phone records on databases at the agency.

{mosads}Yet if proponents of surveillance reform thought that they won the war over security-minded lawmakers like Senate Majority Leader Mitch McConnell (R-Ky.) when the Freedom Act was signed by President Obama, they were dealt a small defeat on June 30 at the hands of the Foreign Intelligence Surveillance Court (established by the Foreign Intelligence Surveillance Act and hence referred to as the “FISA court”). The ironic part is that this defeat was inevitable, because the bill that privacy advocates like Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) lobbied for so aggressively provides the NSA with a grace period before the agency has to alter their metadata collection program.

As in previous court complaints seeking a constitutional ruling against the NSA surveillance program, the plaintiff in this case argued that the Obama administration should be prohibited from reauthorizing bulk surveillance now that the USA Freedom Act has been passed and a previous circuit court ruling called the entire enterprise inconsistent with the original meaning of Section 215 of the Patriot Act. The FISA court, the body tasked with approving government requests for warrants in intelligence investigations, shot down that argument in a relatively brief 26-page ruling. But while national newspapers like The New York Times attempted to heighten the FISA court’s ruling as some dramatic piece of judicial history (the story was on the front page of the Times‘ website for several hours after the verdict was published), the decision to reject the plaintiff’s request for a full termination of the NSA bulk metadata program is in perfect alignment with the very same law that Congress passed a month prior.

As stipulated under Section 109 of the USA Freedom Act, reforms to the original Patriot Act don’t fully kick in until 180 days after the date of enactment. In other words, it is still the law of the land for the NSA to continue requesting — and ultimately receiving — millions of telephone records from phone companies like Verizon for another six months. As the court concluded in its decision on June 30, “Congress could have prohibited bulk data collection under Title V of FISA effective immediately upon enactment of the USA FREEDOM Act. … 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.”

What does this all mean in the end, and why does it matter?

Ultimately, what the FISA court ruling demonstrates is that, despite numerous stereotypes propagated by the likes of Sens. Rand Paul (R-Ky.) and Ted Cruz (R-Texas) of NSA employees deliberately scooping up the private phone records of innocent Americans and eavesdropping on highly personal phone calls (the content of the calls, in fact, are not included in what the NSA requests from the phone companies), the agency is indeed complying with federal law as defined by Congress and the courts. While there are legitimate complaints about the secrecy of how the bulk data collection program came to be — the vast majority of congressional members outside of the intelligence committees were effectively kept in the dark about what the NSA was doing during the George W. Bush and Obama administrations — the FISC repeatedly bestowed its blessing on the bulk surveillance program year after year.

And secondly, if privacy advocates like Sen. Ron Wyden (D-Ore.) are upset over the freedom that the NSA is given over the next 180 days, they need to look in the mirror. Due to the 180-day transition period to the new system as clearly spelled out in the USA Freedom Act, the NSA will be able to operate under the old rules until Nov. 29, 2015. If Congress wanted the old rules abolished immediately and replaced with more transparency and reforms, they could have passed legislation that would have turned the bulk collection program off as soon as the president signed the bill into law.

Instead, in order to get the USA Freedom Act passed despite the vocal objections from the Republican Senate leadership, the bill’s sponsors chose to compromise. The FISA court is merely following what the Freedom Act says.

DePetris is a Middle East analyst for Wikistrat, Inc, a geopolitical risk consultancy, and an independent foreign policy consultant.