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The government might still see your phone data – but you won't know it

- June 4, 2015

National Security Agency document declassified, sort of, in 2013.
With surveillance issues very much in the news, I want to follow up on my last post — which argued that it is possible that the new USA Freedom Act might actually broaden the government’s program of collecting and analyzing telephone metadata. The wording of the law might allow the program to shift from a tool linked only to counterterrorism to one that can be used to analyze such data for the broad purpose of conducting American foreign policy.
The question is unsettled because the new law (in Section 104) explicitly gives the Foreign Intelligence Surveillance Court (FISC) authority to impose additional “minimization procedures” on the government. The FISC could conceivably use that power to confine the metadata program to its original counterterrorism purpose.
Ironically, though, we may not find out what, if anything, the FISC does with its power — that is, whether it is closing the curtains on Americans’ privacy or opening them even wider than before.  I fear we are once again likely to be in the dark about exactly what the National Security Agency is doing with our telephone metadata.
Why? After all, the new law hoped to make FISC proceedings more transparent. It even requires the Director of National Intelligence (DNI), “in consultation with the Attorney General,” to conduct a declassification review of each decision, order, or opinion issued by the FISC that includes “a significant construction or interpretation” of any provision of law and make it publicly available “to the greatest extent practicable.”
But let’s say the FISC takes the (courageous) step of denying the government the authority to analyze our telephone metadata for the purpose of gathering foreign intelligence. In such a case, would this constitute “significant construction or interpretation” of the law? The court would simply be doing what the law explicitly says it can do by imposing additional “minimization procedures” on the government.
At the other end of things, if the FISC takes the opposite course and permits the government to extend its analysis of telephone metadata into the realm of foreign policymaking, the DNI might be able to avoid declassifying that opinion also. The government can argue that the literal words of the statute give the government this expanded authority — to analyze not only telephone metadata having foreign intelligence value (presumably limited to the metadata of telephone communications between foreigners and anyone inside the United States) but also the domestic communications of those who, directly or indirectly, communicate with foreigners.
The legislative history of the Freedom Act clearly supports the view that the law envisions two different ways for the government to collect telephone metadata, as noted in the Congressional Research Service’s (CRS) summary of the initial version of the bill from October 2013.
The bill, concluded CRS, “[e]stablishes two separate frameworks for the production of telephone metadata.” One framework requires that the “seed” number be linked in some way to international terrorism, and has limits:

“the reasonable, articulable suspicion standard regarding an association with a foreign power or an agent of a foreign power, the 180-day period limitation, the two-hop limitation [i.e., jumping two steps away from the original phone number], and the prompt destruction requirements for records that are not foreign intelligence information.”

But the second framework is not subject to the requirements of the first. That fact may be cleverly and artfully hidden in the statutory maze, but it is indisputably there. Thus the government will presumably argue that there is no need for the FISC to engage in any “significant construction or interpretation” of it. All a judge has to do is apply the law.
If so, the DNI has no legal obligation to declassify and publish the FISA court opinion upholding the legality of the “second framework.”
It’s possible that a FISC judge could uphold the legality of the “second framework,” but insist that his or her opinion or decision should be made public. This is not likely, but it is possible. Even then our judge would have to do some very heavy lifting. Recall that the Freedom Act makes it clear that it is the DNI, “in consultation with the Attorney General,” who decides if a FISA opinion, order, or decision involves a “significant interpretation” of the law. In other words, the DNI is the fox guarding the FISC henhouse.
Indeed, even if the DNI did decide a FISC decision was a “significant” interpretation of the Freedom Act, that Act gives the DNI authority to make this interpretation public “to the greatest extent practicable” in two different ways. The DNI could either issue a “redacted” opinion or waive the requirement to declassify entirely. The DNI may take the latter option when it is “necessary to protect the national security of the United States or properly classified sources of methods” so long as the Attorney General issues an unclassified “statement” that summarizes the “significant” interpretation,” but here too only “to the extent consistent with national security.”
For those not familiar with the term “redacted,” see the photo at the top of this post. What it means in this context is that all the decisive language of an opinion or decision is inked out — which means that redacted opinions can easily be used by the government to mislead the American people about how it is analyzing U.S. telephone metadata. The same thing can be said for “summaries” that summarize only “to the extent consistent with national security.”
If the government thinks that disclosing the existence of the “second framework” of telephone metadata analysis would undermine U.S.’s ability to gather foreign intelligence because it would tip off foreign states, corporations, and non-state actors, both friendly and non-friendly alike, about what the U.S. government was doing, then it won’t disclose it in a “summary.”
Two interests are competing here: Privacy and the American public’s right to know what its government is doing with its telephone metadata, on the one hand, and on the other, the intelligence community’s wish to keep all of its “sources and methods” secret.
The USA Freedom Act aims to be a step in the direction of privacy and transparency, but I fear it is an insidious step in the other direction. Worse, the American people will be left in the dark about whether the government is analyzing international and domestic telephone metadata more, not less, than it did prior to its passage.