Court Revives Defunct NSA Mass Surveillance Program

The National Security Administration campus in Fort Meade, Md.

The National Security Administration campus in Fort Meade, Md. Patrick Semansky/AP File Photo

A federal court has revived the National Security Agency's bulk collection of Americans' phone records, a program that lapsed earlier this month when sections of the Patriot Act briefly expired.

The Foreign Intelligence Surveillance Court approved a government request to renew the dragnet collection of U.S. phone metadata for an additional five months—a timeframe allowed under the Freedom Act, a newly enacted surveillance reform law that calls for an eventual end to the mass spying program exposed by Edward Snowden two years ago.

The Senate passed the Freedom Act days after allowing the June 1 expiration of the Patriot Act's three spying provisions, including Section 215, which the NSA uses to justify its bulk collection. The court order renews the surveillance until November 29, 2015—six months after enactment of the reform law.

"This application presents the question whether the recently-enacted USA Freedom Act ... ended the bulk collection of telephone metadata," the order, issued Monday and obtained by National Journal, reads. "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."

Such a transition period was baked into the Freedom Act to allow the NSA time to switch over to a more limited and targeted surveillance regime. Going forward after November, the law will allow the spy agency to request records from phone companies only on an as-needed basis after obtained approval from the FISA Court.

Acknowledging the unusual situation that finds the government again extending a controversial program Congress fought to dismantle, the Court began its opinion with a dose of French prose that translates to, "the more things change, the more they stay the same."

Former Virginia Attorney General Ken Cuccinelli was appointed to serve as a privacy consultant for consideration of the government's renewal application. The Freedom Act requires that the FISA Court consult a panel of privacy experts for certain cases, but that panel has not yet been constructed. In its absence, Cuccinelli was selected for this particular consideration.

Cuccinelli, a Republican who unsuccessfully ran for Virginia governor in 2013, filed a legal challenge this month with the FISA Court asking it to not grant the Obama administration's request to revive the NSA's program. That challenge, which was joined by the conservative group FreedomWorks, was rejected.

The FISA Court's order also largely dismissed a federal appeals court that ruled last month that the NSA phone records program was illegal. That opinion argued that the FISA Court had erred in its interpretation of the word "relevant" to essentially mean all Americans' call data, and that Congress never intended for the government to be able to collect records so broadly—something the bill's original author, Rep. Jim Sensenbrenner, has also stated.

"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," the order, penned by Judge Michael Mosman, reads. "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."

Sen. Ron Wyden, one of the most outspoken critics of NSA spying and a leader in the Senate's push to curb the agency's bulk surveillance program, criticized the extension Tuesday.

"I see no reason for the Executive Branch to restart bulk collection, even for a few months," the Oregon Democrat said in a statement. "This illegal dragnet surveillance violated Americans' rights for fourteen years without making our country any safer. It is disappointing that the administration is seeking to resurrect this unnecessary and invasive program after it has already been shut down."