A Phone Company Fought the NSA—And the NSA Won

A Phone Company Fought the NSA—And the NSA Won
A surveillance court ordered the company to hand over its customers' data.

April 25, 2014

An unnamed phone company recently resisted a National Security Agency demand for access to its subscribers' data, according to court documents declassified Friday.

But on March 20, the Foreign Intelligence Surveillance Court rejected the company's motion and ordered it to continue turning the records over to the NSA. The government redacted the name of the company and other information from the documents.

It was apparently the first time any phone company tried to fight the NSA's controversial mass-surveillance program. A federal judge wrote last year that no phone company had resisted the program, which the NSA claims is authorized under Section 215 of the Patriot Act.

The program collects phone "metadata"—such as phone numbers, call times, and call durations—but not the contents of any communications.

Last December, Judge Richard Leon of the U.S. District Court for the District of Columbia sided with a conservative activist and ruled that the NSA's bulk collection of phone records is unconstitutional.

"I cannot imagine a more 'indiscriminate' and 'arbitrary' invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval," Judge Leon wrote.

On Jan. 22, the unnamed phone company filed a petition with the FISC, challenging an NSA order it had recieved. The company wrote that because of Leon's ruling, the legality of the NSA program is in question for the first time. Although the company challenged the order, it said it would continue to comply with the NSA until the court ruled otherwise.

In the 31-page ruling, Judge Rosemary Collyer of the FISC directly rejected Judge Leon's reasoning, calling it "unpersuasive." Citing the 1979 Supreme Court case Smith v. Maryland, she concluded that people have no Fourth Amendment rights over the metadata that they share with phone companies.

"The aggregate scope of the collection and overall size of NSA's database are immaterial in assessing whether any person's reasonable expectation of privacy has been violated," she wrote. She also noted that the FISC imposes limits on how the NSA can search through and handle the phone data after it is collected.

The NSA's bulk collection program is one of the most controversial revelations from the leaks by Edward Snowden. President Obama has asked Congress to enact legislation to shift the massive phone database out of the NSA's hands. But for now, the agency is still collecting records on millions of U.S. calls.

If Congress doesn't end the bulk collection program, it looks like it's bound for the Supreme Court.


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