Snowden be damned: Government renews US call record order

Again, feds argue there's no "legitimate expectation of privacy" over metadata.

by Cyrus Farivar - July 19 2013, 6:10pm EST

• Lawsuits
• National Security

http://arstechnica.com/tech-policy/2013/07/snowden-be-damned-government-renews-us-call-record-order/

James Clapper (left, front) is the current director of national intelligence. Leon Panetta (next to Clapper), served as director of the CIA from 2011 to 2013.

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On Friday, the Director of National Intelligence (DNI) released a statement saying that its authorization to compel telephone companies to share metadata has been renewed by the Foreign Intelligence Surveillance Court (FISC).
In early June, The Guardian published a document showing that Verizon was compelled to share call records of all of its customers with the National Security Agency (NSA). It is widely believed that similar orders exist for the other telecommunications companies and include both landline and mobile providers.
The move is particularly noteworthy and unusual as this type of data sharing had previously been kept from the public, but now one of the country's top intelligence officials is publicly acknowledging that FISC has sanctioned a continuation of its powers.
In the new statement, Director of National Intelligence James Clapper wrote that he had declassified some information “in order to provide the public with a more thorough and balanced understanding of the program.”
In its new statement, the DNI also wrote:

Consistent with his prior declassification decision and in light of the significant and continuing public interest in the telephony metadata collection program, the DNI has decided to declassify and disclose publicly that the Government filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the Court renewed that authority.

“The program does not involve ‘searches’ of plaintiffs’ persons or effects”

Meanwhile, the government has formally responded to a lawsuit (ACLU v. Clapper), in which the American Civil Liberties Union (ACLU) argued to halt the nationwide metadata spying program.
In its federal lawsuit filed on June 11, 2013, the ACLU argued:

This surveillance is not authorized by Section 215 and violates the First and Fourth Amendments. Plaintiffs bring this suit to obtain a declaration that the Mass Call Tracking is unlawful; to enjoin the government from continuing the Mass Call Tracking under the VBNS order or any successor thereto; and to require the government to purge from its databases all of the call records related to Plaintiffs’ communications collected pursuant to the Mass Call Tracking.

In a four-page letter to the judge in the case, first reported by Wired, officials from the Justice Department defended the legality of the program, reiterating similar remarks made by NSA Director Gen. Keith Alexander on Thursday.
The government wrote in its new filing (PDF):

The large volume of telephony metadata is relevant to FBI investigations into specific foreign terrorist organizations because to identify potential terrorist communications under this court-imposed query standard requires collecting and storing a large volume and high percentage of information about unrelated communications, to ensure that the much smaller subset of terrorist-related telephony metadata records are contained within the dataset. These data allow the Government to make connections related to terrorist activities over time and can assist counter-terrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, including persons and activities inside the United States.
. . .
Second, the alleged metadata program is fully consistent with the Fourth Amendment. Most fundamentally, the program does not involve "searches" of plaintiffs' persons or effects, because the collection of telephony metadata from the business records of a third-party telephone service provider, without collecting the contents of plaintiffs' communications, implicates no "legitimate expectation of privacy" that is protected by the Constitution.

In short, the government is relying on a well-established (but increasingly challenged) part of American case law known as the “third-party doctrine.” This notion says that when a person has voluntarily disclosed information to a third party—in this case, the telco—the customer no longer has a reasonable expectation of privacy over the numbers dialed nor their duration. Therefore, this doctrine argues, such metadata can be accessed by law enforcement with essentially no problem.