License to snoop: Court revives NSA spy program through December

The NSA can reboot its bulk collection program, which expired on June 1, for a period of five more months. This was the decision of a federal spy court put in charge of reviewing the agency’s future petitions for records under the USA Freedom Act.

Judge Michael Mosman of the Foreign Intelligence Surveillance Court (FISC) opened his 26-page decision with a French phrase meaning “the more things change, the more they stay the same,” before granting the government’s request, filed mere minutes after the USA Freedom Act was signed into law on June 2.

Drafted before another federal judge ruled that the Patriot Act’s Section 215 did not, in fact, authorize bulk collections, the Freedom Act envisioned a six-month window for the NSA to wind down the program. A bipartisan group of lawmakers held up the law’s adoption until Section 215 had expired, however, hoping to force the program to shut down.

“This application presents the question whether the recently-enacted USA Freedom Act ... ended the bulk collection of telephone metadata,” says the order, obtained by National Journal on Tuesday. “The short answer is yes. But in doing so, Congress deliberately carved out a 180-day period following the date of enactment in which such collection was specifically authorized. For this reason, the Court approves the application in this case.”

Opponents of Section 215 criticized the government’s request as disingenuous, since the assumption behind the Freedom Act’s six-month window to shut down the program was based on it actually running. Once it had been shut down, the need no longer existed. Senator Ron Wyden (D-Oregon) called it “disappointing” that the administration would seek to “resurrect this unnecessary and invasive program after it has already been shut down.”

READ MORE: Let us spy for 6 months more: NSA asks court for extension of expired surveillance program

Judge Mosman, however, sided with government lawyers, who claimed the 180-day period intended to ease the program’s shut down, in fact authorized them to restart it. He also accepted the government’s argument that the Second Circuit Court’s ruling that bulk collections were illegal did not apply to the FISC.

“Second Circuit rulings are not binding on the FISC, and this Court respectfully disagrees with that Court’s analysis, especially in view of the intervening enactment of the USA Freedom Act,” he wrote in the order. “To a considerable extent, the Second Circuit’s analysis rests on mischaracterizations of how this program works and on understandings that, if they had once been correct, have been superseded by the USA Freedom Act.”

Seeking to block the government’s motion, former Virginia Attorney General Ken Cuccinelli and the conservative group FreedomWorks filed their own brief against restarting bulk collections, citing the Fourth Amendment’s prohibition of unreasonable searches and seizure. Judge Mosman rejected that challenge. He did, however, appoint Cuccinelli an “amicus” in future NSA cases, in the absence of a privacy panel envisioned by the Freedom Act as a consulting body for the FISC.

Under Judge Mosman’s order, the government will have until November 29 of this year to continue running the bulk collection program. After this date, the Freedom Act will allow the NSA to request records from phone companies based on specific search terms after obtaining approval from the FISC. Monday’s ruling indicates, however, that such approval won’t be too difficult to obtain.

Described by Senator Wyden as “illegal dragnet surveillance,” Section 215 bulk collection was one of the programs exposed two years ago by NSA whistleblower Edward Snowden. When not hearing government requests at the FISC, Judge Mosman serves on the Federal District Court in Wyden’s home state of Oregon.