Court temporarily brings back NSA surveillance program

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A federal court said in a Monday order that the National Security Agency can resume the bulk collection of American’s phone records for roughly five months as the program is phased out.

Under the recent law aimed at ending the surveillance program, the USA Freedom Act, the government has a six-month transition period in which to continue collecting phone records.

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In an order published by National Journal, a Foreign Intelligence Surveillance Court judge said that the program could continue for the remainder of that transition period.

“This application presents the question whether the recently-enacted USA FREEDOM Act, in amending Title V of FISA, ended the bulk collection of telephone metadata,” Judge Michael W. Mosman wrote.

“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.”

The ruling was in response to a government request to continue the program.

“[T]he government respectfully submits that it may seek and this court may issue an order for the bulk production of tangible things,” the Justice Department said in a memo less than an hour after the USA Freedom Act was signed into law earlier this month.

The Justice Department and the office of the Director of National Intelligence confirmed the resumption of the metadata program in a statement but noted that it moves forward for the remaining transition period under new restrictions instituted in 2014 after a push by President Obama.

"During the transition period, absent a true emergency, telephony metadata can only be queried after a judicial finding that there is a reasonable, articulable suspicion that the selection term is associated with an approved international terrorist organization," the statement says.

"In addition, the query results must be limited to metadata within two hops of the selection term instead of three."

The American Civil Liberties Union indicated it would push back against the ruling.
 
“Neither the statute nor the Constitution permits the government to subject millions of innocent people to this kind of intrusive surveillance," said Deputy Legal Director Jameel Jaffer. "We intend to ask the Second Circuit to prohibit the surveillance and to order the NSA to purge the records it's already collected."

Former Virginia Attorney General Ken Cuccinelli, in consort with FreedomWorks, briefed the surveillance court on concerns raised by the government’s application to continue the program. Under the new law, the court will have a panel of experts to consult on controversial privacy cases — but that body hasn’t been created yet.

The passage of the USA Freedom Act marked the zenith of a debate over the program sparked by revelations about its existence and scope from leaker Edward Snowden.

Ben Kamisar contributed. This story was updated at 7:15 p.m.