Critics say federal court got it wrong in defense of NSA activity

The federal surveillance court overseeing the National Security Agency (NSA) has needlessly sacrificed Americans’ privacy in giving the U.S. spy agency carte blanche access to phone records, critics say.

The Federal Intelligence Surveillance Court (FISC) on Tuesday released a 29-page opinion that explained the court’s reasoning for approving the NSA’s collection of billions of phone records as part of its counterterrorism activities.

The secretive court released the opinion in response to media reports of NSA data collection of phone records and Internet activity, based on documents supplied by former NSA contractor Edward Snowden.

The court found that the NSA’s massive gathering of “all call detail records” from phone companies was justified, because the agency was searching for known and unknown terrorists who may be in the U.S.

Not knowing who the suspects are in advance made it impossible for the NSA to conduct targeted searches, and still do its job of preventing terrorist attacks, it said.

The conditions surrounding NSA’s work also justified the government showing only a “reasonable grounds to believe” records are needed in an investigation, said the opinion, signed by Judge Claire V. Eagan.

The standard is a much lower burden than what is needed when police seek phone records of potential suspects in crimes that have already been committed.

On Wednesday, critics challenged the court’s opinion as a poor interpretation of the Foreign Intelligence Surveillance Act, which established judicial and congressional oversight over the NSA surveillance activities.

Alan Butler, appellate advocacy counsel for the Electronic Privacy Information Center, said the court’s assertion that bulk data collection was “necessary” in the search for possible terrorists is the wrong legal standard. Instead, FISA made relevancy to an authorized investigation the standard for determining which data to gather.

“There is no doubt that hundreds of millions of wholly domestic telephone records collected by the NSA each year are irrelevant to any terrorism investigation,” Butler said. “The FISC’s interpretation of the term ‘relevance’ in the statute is unprecedented, and legal experts have already indicated that its analysis is weak.”

EPIC is one of several civil rights groups suing the NSA for violating privacy protections granted in the U.S. Constitution.

The American Civil Liberties Union, which is also suing the NSA, said the agency could narrow its search from the start, since it typically begins an investigation with a phone number.

Using a pen register, the agency could find all the numbers called from that telephone line and continue tracing lines that appear suspicious. That approach would protect the privacy of millions of innocent Americans.

[Also see: Google plan to thwart government surveillance with encryption raises stakes]

“There’s no reason [the NSA] can’t target that surveillance at the outset to figure out the entire network of people who are calling each other,” said Alex Abdo, staff attorney for the ACLU.

The ACLU is scheduled to argue its NSA suit before a federal court judge in New York on Nov. 1.

In general, critics of the FISC opinion said the government could use the court’s rationale to collect any information on Americans, from financial transactions to all Internet activity.

“The way big data works there is no such thing as irrelevant data in this case,” said Peter Ludlow, a professor at Northwestern University who has written extensively about government surveillance. “Absolutely anything could be relevant to predicting an increased likelihood of criminal activity by someone.”

Documents allegedly stolen by Snowden showed that U.S. tech companies, such as Google, Facebook and Microsoft, have collaborated with the NSA. The revelations brought dire warnings by experts that the industry would suffer heavy financial damage, particularly overseas.

So far, there has been no fallout, reports Reuters. Google, Microsoft and Amazon told the news agency they have seen no impact on their businesses. Amazon was not listed in the Snowden documents, but was seen as a likely victim of the exposure of NSA activity.