FISA Court Asked To Shut Down Bulk Collection Of Phone Records During Transition To USA Freedom Act

Lawyer Ken Cuccinelli -- who's representing Rand Paul in his lawsuit against the government for its domestic surveillance programs -- has filed a motion in opposition of the resumption of the Section 215 program with the FISA Court. While Section 215 officially expired on May 31st, it lives on in altered form after the passage of the USA Freedom Act, which ends the collection of metadata and forces the government to approach telcos with targeted requests for data.

But the NSA and FBI don't need to cease their bulk collection immediately. The passed Act provides a six-month window for the agencies to wind down current collections and prepare for the move to a more limited collection method. This is what Cuccinelli and FreedomWorks are arguing against. Despite the expiration, the USA Freedom Act's new limitations, and the Second Circuit Court finding the collection itself unauthorized by existing law, the collection is still ongoing and will be running unaltered for 180 days. Cuccinelli says the FISA Court should halt this collection immediately based on two legal conclusions.

Movants' first argument is that Respondents' metadata collection is beyond the scope of what Congress authorized in Section 215 and this Court should deny Respondents' filed or imminent request to renew/re-institute such metadata collection. ACLU v. Clapper, 2015 U.S. App. LEXIS 7531.

Movants' second argument is that Respondents' metadata collection, as well as the storing and searching of such metadata, violates the Fourth Amendment.

Most of the filing details these two legal arguments, with the most interesting passages dismantling the government's reliance on 1979's Smith v. Maryland decision -- something that dealt with the targeted acquisition of a suspected criminal's phone records via a pen register/trap and trace order, which is vastly dissimilar to the collection of everyone's data first, and then working backwards to locate suspects.

First, while Movants do not dispute the importance of identifying terrorist operatives and preventing terrorist attacks, such an interest does not justify a secret blanket warrantless search of all telephone metadata from all (or substantially all) American citizens. The Edmond Court noted ''the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terorist attack." 531 U.S. at 44 (emphasis supplied).

The word "imminent" is critical. Its primary definition is "an event, esp. danger or disaster: impending, soon to happen." 1 SHORTER OXFORD ENGLISH DICTIONARY 1323 (5th ed. 2002) (emphasis supplied). That is, in such a scenario the Government would already have compelling evidence showing a particular terrorist attack is likely to happen in the near future (as opposed to a general concern that ''terrorists are looking to strike the United States")-the existing evidence obtained through proper methods would be the basis for claiming the "special need."

But in this case, the Government is attempting to invert the process-the Government has no evidence and instead seeks to cull through massive amounts of data attempting to ferret out terrorism. Thus, the alleged "special need" is the Government's desire to seek evidence, which may or may not exist, regarding unknown hypothetical terrorist attacks. The "nature and immediacy" of the Government's concerns do not justify the metadata collection because it is not based on thwarting an "imminent" attack.

The motion goes on to point out that while the government continues to claim it "needs" this program to thwart terrorism, it has offered up no evidence showing the bulk collection's ability to do so. To that end, Cuccinelli respectfully asks the court to kill Section 215 dead.

For all the foregoing reasons, the Court should deny the Government's request to reinstitute/renew metadata collection. Furthermore, the Court should declare that the metadata collection is beyond the scope of Section 215 and violated the Fourth Amendment; enjoin Respondents from conducting or operating the metadata collection; order Respondents to destroy any and all telephone metadata that has been seized, stored, retained, and/or searched, regardless where held or by whom (excepting such data as Respondents can show reasonable cause to be related to an authorized investigation); award Movants' fees and costs pursuant to 28 U.S.C. 2412; and such other and further relief as the Court deems just and proper.

The FISA Court has ordered the government to respond to the motion, and it's not being given much time to do so.

Any response by the Government to the motion shall be submitted no later than June 12, 2015. Such response shall be limited to the merits of whether the bulk acquisition of noncontent call-detail records is lawful under Title V of the Foreign Intelligence Surveillance Act (FISA), as amended by the USA FREEDOM Act of 2015, Public Law No. 114-23, and consistent with the Fourth Amendment to the Constitution, and shall not address any issues regarding whether the Movants have standing under FISA or Article III of the Constitution to seek the relief requested by the motion.

The government may not be used to working so quickly, but it certainly seems to be able to kick it into a higher gear when it serves its purposes. The Section 215 program was stalled for all of about 48 hours before the administration placed it back online with the signing of the USA Freedom Act, as can be discerned from this part of the FISA Court's order.

The Government shall immediately serve on the Movants a copy of its unclassified "Memorandum of Law," captioned "In Re Application of the Federal Bureau of lnvestigation for an Order Requiring the Production of Tangible Things" and filed with this Court on the night of June 2, 2015, and submit to the Court a certificate of such service.

The government's response should be interesting, considering the ongoing legal challenges to its surveillance programs, especially since it won't be allowed to spend several pages arguing why the movants shouldn't even be allowed to challenge bulk collections. This challenge may also prompt a faster transition period, especially if the involved agencies face the prospect of 180 days "in the dark."

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