Feds plot course to resume NSA spying

Feds plot course to resume NSA spying
© Getty Images

The National Security Agency (NSA) is taking steps to turn its massive collection of Americans’ phone records back on.

After President Obama signed legislation last week to end the controversial program, the Justice Department submitted a legal memorandum to the secretive federal court justifying authorization for the NSA collection for another six months, as the new law allows. 


“[T]he government respectfully submits that it may seek and this court may issue an order for the bulk production of tangible things” under the law, “as it did in ... prior related dockets,” the Justice Department said in its memo.

The legal analysis was submitted on Tuesday, less than an hour after the White House announced that the president had signed the USA Freedom Act into law. The memo was not revealed to the public until Monday.

Until the passage of the USA Freedom Act last week, the Foreign Intelligence Surveillance Court (FISC) routinely granted the NSA the ability to collect "metadata" about millions of Americans’ phone calls, including the numbers people dial and the length of their calls, but not their actual conversations.

Passage of the USA Freedom Act ended the metadata program, and creates a new system that forces the NSA to get a narrower set of records from private phone companies. But the law gives the agency six months to transition to the new system.

In its new filing, the Obama administration said that it should be allowed to continue the program for those extra six months, even after a top federal court ruled earlier this year that the program was illegal. 

The FISC “may certainly consider” the ruling in that appeals court case, the government said, however the court’s rulings “do not constitute controlling precedent.”

The legal analysis does not amount to a formal request to renew the program, even though one is expected shortly.

Instead, the memo outlines the legal rationale for restarting the NSA program. The court demanded that explanation in its February order renewing the NSA program, expecting that the law would change around a June 1 deadline for Congress to renew or reform parts of the Patriot Act undergirding the NSA data collection.

But the court is coming under pressure to block the government’s request and prevent the NSA from renewing its powers.

On Friday, the advocacy group FreedomWorks and former Virginia Attorney General Ken Cuccinelli (R) filed a joint 41-page motion telling the secretive spy court that the NSA program is not only illegal but also unconstitutional.

People “have a reasonable expectation of privacy in their personal telephone metadata,” they wrote.

“[T]he court should deny the government's request to reinstitute/renew metadata collection.”

Another reform in the USA Freedom Act will add a new panel of experts to occasionally provide advice to the FISC, which otherwise only hears arguments from the government.

In his filing on Friday, Cuccinelli suggested that he could be able to play that role, since he is “experienced in addressing privacy matters, civil liberties issues and is a constitutional lawyer.”

Cuccinelli had previously filed a class action lawsuit against the NSA over the phone records program, along with Sen. Rand Paul (R-Ky.), who is now running for president. Cuccinelli lost the 2013 Virginia gubernatorial race to Democrat Terry McCauliffe.