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Critics say federal court got it wrong in defense of NSA activity

Antone Gonsalves | Sept. 20, 2013
Court's rationale allows collection of almost any information on Americans, including all financial transactions and Internet activity

The federal surveillance court overseeing the National Security Agency (NSA) has needlessly sacrificed Americans' privacy in giving the U.S. spy agency carte blanche access to phone records, critics say.

The Federal Intelligence Surveillance Court (FISC) on Tuesday released a 29-page opinion that explained the court's reasoning for approving the NSA's collection of billions of phone records as part of its counterterrorism activities.

The secretive court released the opinion in response to media reports of NSA data collection of phone records and Internet activity, based on documents supplied by former NSA contractor Edward Snowden.

The court found that the NSA's massive gathering of "all call detail records" from phone companies was justified, because the agency was searching for known and unknown terrorists who may be in the U.S.

Not knowing who the suspects are in advance made it impossible for the NSA to conduct targeted searches, and still do its job of preventing terrorist attacks, it said.

The conditions surrounding NSA's work also justified the government showing only a "reasonable grounds to believe" records are needed in an investigation, said the opinion, signed by Judge Claire V. Eagan.

The standard is a much lower burden than what is needed when police seek phone records of potential suspects in crimes that have already been committed.

On Wednesday, critics challenged the court's opinion as a poor interpretation of the Foreign Intelligence Surveillance Act, which established judicial and congressional oversight over the NSA surveillance activities.

Alan Butler, appellate advocacy counsel for the Electronic Privacy Information Center, said the court's assertion that bulk data collection was "necessary" in the search for possible terrorists is the wrong legal standard. Instead, FISA made relevancy to an authorized investigation the standard for determining which data to gather.

"There is no doubt that hundreds of millions of wholly domestic telephone records collected by the NSA each year are irrelevant to any terrorism investigation," Butler said. "The FISC's interpretation of the term 'relevance' in the statute is unprecedented, and legal experts have already indicated that its analysis is weak."

EPIC is one of several civil rights groups suing the NSA for violating privacy protections granted in the U.S. Constitution.

The American Civil Liberties Union, which is also suing the NSA, said the agency could narrow its search from the start, since it typically begins an investigation with a phone number.

Using a pen register, the agency could find all the numbers called from that telephone line and continue tracing lines that appear suspicious. That approach would protect the privacy of millions of innocent Americans.

"There's no reason [the NSA] can't target that surveillance at the outset to figure out the entire network of people who are calling each other," said Alex Abdo, staff attorney for the ACLU.

 

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