Geof Stone on NSA's Bulk Telephony Meta-Data Program
In my last post I explained a bit about what it was like to serve as one of the five members of the President's Review Group that was charged this fall with the responsibility of making recommendations about NSA surveillance and related issues. At the end of that post, I said I would follow-up several more essays examining the reasoning beyond some of the Review Group's 46 recommendations. In this post, I address the NSA's bulk telephony meta-data program, which has received so much attention in recent months.
In the aftermath of the September 11 terrorist attacks, Congress made several significant changes to the Foreign Intelligence Surveillance Act. Among the most important was the addition of section 215, which authorized the Foreign Intelligence Surveillance Court (the FISC) to issue orders directing individuals and organizations to turn over to the government "tangible things including books, records, papers, documents, and other items" upon a finding by the FISC that the government has "reasonable grounds to believe that the tangible objects sought are relevant" to an investigation intended to protect the nation "against international terrorism."
On its face, there was nothing exceptional about section 215. The government has always been able to use subpoenas to compel individuals or businesses to turn over documents and other objects in the course of criminal investigations. Section 215 essentially extended the traditional subpoena power to the foreign intelligence context. Because foreign intelligence investigations are typically classified, it was necessary to obtain these orders from the FISC, rather than from ordinary federal courts, because the FISC is designed specifically to deal with classified matters.