Fisa court: no telecoms company has ever challenged phone records orders

Citing the "unprecedented disclosures" and the "ongoing public interest in this program", Judge Claire V Eagan on 29 August not only approved the Obama administration's request for the bulk collection of data from an unidentified telecommunications firm, but ordered it declassified. Eagan wrote that despite the "lower threshold" for government bulk surveillance under Section 215 of the Patriot Act compared to other laws, the telephone companies who have received Fisa court orders for mass customer data have not challenged the law.

"To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order," Eagan wrote. "Indeed, no recipient of any Section 215 Order has challenged the legality of such an order, despite the mechanism for doing so."

Citing a supreme court precedent, Eagan found that there are no Fourth Amendment protections around so-called "metadata", the records of phone numbers dialed and received or the times and durations of phone calls. While the precedent, Smith v Maryland, had to do with an individual case, Eagan wrote that the collection of metadata from millions of people does not, en masse, create a constitutional problem.
The declassification sheds some more light on how the Patriot Act has been used as a legal justification for the collection of bulk data in the telephone sphere. We know that language in the act attempts to extend the pen switch logic to internet communications, even the technology there does not have the same separation as the phone networks.

It would appear that the offspring of dear old Ma Bell are indeed a passive and compliant lot. There is an appeals mechanism for decisions from the FISC. The fact that it has gone unused is quite telling. Various internet companies are suddenly trying to file court actions to protest their innocence in their relationship with the NSA now that the bad press promises to cut into their revenue.

There are several possible avenues for doing something about a program that much of the public views as invasive and abusive. The executive branch could make administrative decisions to curtail the practices. The Patriot Act gives them authority to conduct such activity. It does not mandate that they do so. Congress could modify or entirely repeal the Patriot Act which would be a nifty idea. SCOTUS could disagree with the FISC and rule the provisions of the ACT unconstitutional.

What are the chances of one or more of those events coming to pass? Not very likely I would say.  

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