Court reauthorizes surveillance program, citing congressional approval

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“Although the existence of the [bulk telephone data collection] program was classified until several months ago ... many Members of Congress were aware of, and each Member had the opportunity to learn about, the scope of the metadata collection,” McLaughlin wrote.

Privacy advocates took issue with the court’s claim that Congress had approved the mass surveillance program.

“You can’t say that Congress knew what they were voting on” when it reauthorized the surveillance programs, Michelle Richardson, ACLU legislative counsel, said. “They didn’t.”

“Foundational documents were never, and still aren’t, available to members of Congress,” she said, expressing frustration that the McLaughlin opinion “repeats false information.”

In addition to having crucial information about the surveillance program kept from them, members of Congress relied on misleading statements from intelligence officials in congressional hearings, Richardson said.

“They said it was a targeted tool. They never once said it was a bulk collection tool.”

Privacy advocates also criticized McLaughlin’s dismissal of the Supreme Court decision in United States v. Jones. In that case, the Supreme Court found that attaching a GPS device to an individual’s car to track that person’s location violated the Fourth Amendment.

The reauthorization of telephone data collection “involves no such monitoring” of physical location, McLaughlin wrote. “This case concerns the acquisition of non-content metadata other than location information.”

Richardson said she was disappointed to see the Jones ruling “summarily dismissed.”

“McLaughlin acknowledges that five justices in Jones adopted a broader view of Fourth Amendment protection for metadata, but she fails to apply that logic to the case before her,” Alan Butler, attorney with the Electronic Privacy Information Center, said.