As part of an effort to quell concerns about the federal government’s data mining programs, the Obama administration has released a white paper explaining why they think they have the legal authority to get telephone metadata on every single cell phone user in the country. To call that rationale absurd is to engage in flattery. It says, in part:
This telephony metadata is important to the Government because, by analyzing it, the Government can determine whether known or suspected terrorist operatives have been in contact with other persons who may be engaged in terrorist activities, including persons and activities within the United States. The program is carefully limited to this purpose: it is not lawful for anyone to query the bulk telephony metadata for any purpose other than counterterrorism, and Court-imposed rules strictly limit all such queries. The program includes internal oversight
mechanisms to prevent misuse, as well as external reporting requirements to the FISC and Congress.
Multiple FISC judges have found that Section 215 authorizes the collection of telephony metadata in bulk. Section 215 permits the FBI to seek a court order directing a business or other entity to produce records or documents when there are reasonable grounds to believe that the information sought is relevant to an authorized investigation of international terrorism. Courts have held in the analogous contexts of civil discovery and criminal and administrative investigations that “relevance” is a broad standard that permits discovery of large volumes of data in circumstances where doing so is necessary to identify much smaller amounts of information within that data that directly bears on the matter being investigated. Although broad in scope, the telephony metadata collection program meets the “relevance” standard of Section 215 because there are “reasonable grounds to believe” that this category of data, when queried and analyzed consistent with the Court-approved standards, will produce information pertinent to
FBI investigations of international terrorism, and because certain analytic tools used to accomplish this objective
require the collection and storage of a large volume of telephony metadata. This does not mean that Section 215 authorizes the collection and storage of all types of information in bulk: the relevance of any particular data to investigations of international terrorism depends on all the facts and circumstances. For example, communications
metadata is different from many other kinds of records because it is inter-connected and the connections between individual data points, which can be reliably identified only through analysis of a large volume of data, are particularly important to a broad range of investigations of international terrorism…
To be sure, the cases that have been decided in these contexts do not involve collection of data on the scale at issue in the telephony metadata collection program, and the purpose for which information was sought in these cases was not as expansive in scope as a nationwide intelligence collection effort designed to identify terrorist threats. While these cases do not demonstrate that bulk collection of the type at issue here would routinely be permitted in civil discovery or a criminal or administrative investigation, they do show that the “relevance” standard affords considerable latitude, where necessary, and depending on the context, to collect a large volume of data in order to find the key bits of information contained within.
This “to be sure” is one for the ages. Far from authorizing the warrantless fishing expeditions into millions of records, Congress in amending Section 215 meant explicitly to forbid what the Justice Department now seeks to justify. As the Electronic Privacy Information Center notes in a brief filed last week with the Supreme Court, both Congressional supporters and opponents of Section 215 explicitly interpreted the “relevance” language to limit bulk collection of data, not to permit it. On July 17, during a House judiciary committee hearing, Representative James Sensenbrenner, the author of section 215, said that Congress amended the law in 2006 to impose the relevance requirement in “an attempt to limit what the intelligence community could be able to get pursuant to Section 215.” And during the debate over the 2006 amendments, Sen. Ron Wyden and others stressed that the relevance standard would address “concerns about government ‘fishing expeditions.’”
Moreover, as the EPIC brief makes clear the government’s claim that all telephone metadata on all U.S. persons is “relevant to authorized investigation” is simply not credible because it eliminates the relevance standard in two ways. First, it applies the relevance requirement only after data are collected, not before, allowing the mass collection that Congress meant to forbid. Second, it makes the remarkable claim that all telephone metadata is relevant under Section 215 because somewhere within that vast dataset there may be individual data elements that are, in fact, relevant.” In other words, the government argues that the FISC can authorize the collection of data from hundreds of billions of Verizon calls, even though “only a small portion of the data that is collected is ever actually reviewed, because the vast majority of that data is never going to be responsive to one of these terrorism- related queries.”
As the EPIC brief makes clear, the government’s practice of collecting data on hundreds of billions of calls each year and then later, unilaterally, deciding what is actually relevant (fewer than 300 last year) is not permitted by section 215. Moreover, given the scope of material covered by section 215, if it were permitted, it would allow the government to sweep up almost any data on the basis that some of it might prove relevant later. For example, the argument, if accepted, would allow the government to seize billions of medical records or book or library records without a warrant—the textbook definition of an unconstitutional fishing expedition. The White Paper’s attempt to disavow this possibility boils down to: trust us. Here is the legalese: “This conclusion does not mean that the scope of Section 215 is boundless and authorizes the FISC to order the production of every type of business record in bulk—including medical records or library or book sale records, for example,” the White Paper notes. “Although there could be individual contexts in which the Government has an interest in obtaining medical records or library records for counterterrorism purposes, these categories of data are not in general comparable to communications metadata as a means of identifying previously unknown terrorist operatives or networks.” In other words, we don’t think bulk collection of medical records is necessary to stop terrorism, but if we did, we could collect it.
This is sophistry at its worst and most dangerous. The Obama administration is interpreting a legal text intended to limit its authority to collect data on innocent people who have nothing to do with terrorism in a way that makes it disappear and gives them unbounded authority to do so.