Defying Courts and Critics, Obama Moves to Resurrect NSA's Phone Dragnet
Following passage of USA Freedom Act, Obama administration to ask secret court to reauthorize bulk phone data collections program
A day after President Barack Obama signed the USA Freedom Act into law, the administration began efforts to re-start the government's domestic bulk phone records collection program, new accounts confirm.
The National Security Agency (NSA) was forced to end its collection of domestic phone data on Sunday night after key provisions of the Patriot Act expired, leaving the mass surveillance program without federal authorization.
Under the USA Freedom Act, the agency will have a six-month grace period to hand over data retention control to private phone companies and then shut down its operation for good.
But the government now says it needs to restart the program in order to end it. According to an administration official's statement on Wednesday, the White House will ask the secret court authorized under the Foreign Intelligence Surveillance Act (FISA) to renew the program for the duration of the six-month transition phase.
Officials have not explained why.
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"We are taking the appropriate steps to obtain a court order reauthorizing the program. If such an order is granted, we'll make an appropriate announcement at that time as we have with respect to past renewal applications," the Justice Department's national security spokesperson, Marc Raimondi, told the Guardian on Wednesday.
Officials also did not say whether the FISA court will also hear arguments from the newly created amicus curiae, a panel of outside experts providing input to the court on any matter. Under the USA Freedom Act, if the court chooses not to hear from the panel in significant cases regarding civil liberties, it is required to issue a written finding explaining why.
"When the provisions of the Patriot Act sunsetted...people all over celebrated that they could make a phone call to their friends and families without the government knowing about it for the first time in 14 years. This move to turn on bulk collection is another time when the executive branch and Congress does not serve the will of the people but instead their high dollar donors [like defense companies]," Tiffiniy Cheng, co-founder of civil liberties group Fight for the Future, told Common Dreams.
"The public will hold President Obama and Congress accountable for turning on bulk collection and reinstituting mass surveillance through the USA Freedom Act despite these bulk surveillance capabilities being 1. ineffective for counter-terrorism, 2. illegal 3. unpopular," Cheng added.
"While the USA Freedom Act allows for a period of six months to transition the collection of data outside of the NSA, the administration should actively work to move the program as quickly as possible," Amie Stepanovich, an attorney with digital rights group Access, told the Guardian. "If the NSA takes the entire six months to stop indiscriminately collecting our data it is in violation of the spirit of the transition and needlessly continues to harm the privacy of users en masse. We need to move to the targeted collection codified by the USA Freedom Act without any delay."
Jennifer Granick, director of civil liberties at Stanford University Law School's Center on Internet and Society, added, "Whether the NSA can restart this bulk collection is a novel question, and this decision should not be made in secret. The Fisa court should appoint an amicus—that’s what this provision of USA Freedom is for. And the decision and its reasoning should be made public."
In May, the Second Circuit Court of Appeals ruled in a case brought by the ACLU that the NSA's domestic phone surveillance program was illegal, in a decision hailed by ACLU staff attorney Alex Abdo as a "resounding victory for the rule of law."
If the government succeeds in restarting the program, the ACLU may ask the court to file an injunction to block it, the Guardian reports.
"Bulk collection is already illegal under the 2nd Circuit Court of appeals, with their decision in the Clapper case. And now the passing of the USA Freedom Act has made that decision the law of the land," Lee Tien, senior staff attorney with the Electronic Frontier Foundation, told Common Dreams. "We don't see why the government would revive a program that has no demonstrable value. Now that they’re trying to revive bulk surveillance, it’s clear that this application raises novel and significant issues for the FISA Court that demands participation by the special advocate, because both a public court decision and an Act of Congress so clearly rejected the government’s self-aggrandizing legal interpretation."