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NSA Phone Data Program Constitutional, FISA Court Rules

By Brett Snider, Esq. on September 19, 2013 | Last updated on March 21, 2019

The NSA's covert call records program has been upheld as constitutional by the FISA court, in a declassified opinion released Tuesday.

According to The Washington Post -- which has been on the NSA's case for the last few months -- FISA court Judge Claire V. Eagan released the opinion on her own volition, and not at the request of the government or any lawsuit.

This opinion may be an attempt by the semi-secret FISA court to address constitutional questions about the NSA's programs. But are the justifications satisfying?

FISA Court Opinion

The FISA court, or the Foreign Intelligence Surveillance Court (FISC), is charged with reviewing and approving orders which fall under the Foreign Intelligence Surveillance Act (FISA).

FISA has been used to justify many of the recently uncovered National Security Agency (NSA) surveillance programs, including ones which have effectively gathered domestic data on American citizens.

Perhaps in order to quell rumors that the FISA court was merely a gavel with a red stamp attached, Judge Eagan released this opinion -- with some redactions -- containing a constitutional check of the NSA's phone bulk data collection.

This court has denied certain NSA programs as unconstitutional in the past, particularly an email collection scheme that violated the Fourth Amendment rights of American residents.

So what why was this phone data program different?

Data Collection Skirts Constitutional Violation

With any of these data collection schemes, there is always a worry that these covert law enforcement practices are violating the Fourth Amendment by searching and seizing in areas where Americans have a reasonable expectation of privacy.

Following a legal standard set in cases like Smith v. Maryland, the FISA court found that in the NSA's data collection program, neither party to a call had reasonable expectations of privacy to the data collected (e.g., routing data, caller identification data, length of call, and other metadata). That meant there was no Fourth Amendment violation.

Federal courts have used the same logic to support warrantless tracking of cell phones, claiming that mobile subscribers volunteer this metadata to phone companies when making a call, and lose their privacy rights in that data by doing so.

When collecting data in bulk from phone companies, the FISA court found that the government, under the Patriot Act, need only show that there are "reasonable grounds to believe that the records sought are relevant to the investigation."

"Reasonable grounds" is a far cry from probable cause, and this low bar is likely why the FISA court found the NSA's phone program to be legal.

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