(CN) - In a newly declassified order, the Federal Intelligence Surveillance Court affirmed the government's authority to collect phone records, rejecting a Verizon challenge to its mass surveillance of Americans' call data.
The order does not identify the company that made the petition challenging the National Security Agency's demand for call records, but the Washington Post confirmed
that it was Verizon, the first phone company first revealed by former NSA contractor Edward Snowden that faced a court order to give the agency information.
Verizon filed its January 2014 petition as a direct result of U.S. District Judge Richard Leon's December ruling
that the NSA program likely violated the Fourth Amendment.
Leon said: "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval."
But FISC Judge Rosemary Collyer called Leon's legal analysis "unpersuasive."
President George W. Bush nominated both jurists to the U.S. District Court for the District of Columbia back in 2002.
In the 1979 decision Smith v. Maryland
, the U.S. Supreme Court said a man had no expectation of privacy with regard to his phone records because he "voluntarily conveyed numerical information to the telephone company," and therefore assumed the risk that the company would reveal those numbers to the police.
"The information [redacted] produces to NSA as part of the telephony metadata program is indistinguishable in nature from the information at issue in Smith
and its progeny," Collyer wrote. "It includes dialed and incoming telephone numbers and other numbers pertaining to the placing or routing of calls, as well as the date, time, and duration of calls. It does not
include the 'contents' of any communications."
Leon distinguished Smith
, saying the "almost-Orwellian technology" that enables the telephony metadata program is "unlike anything that could have been conceived in 1979," allowing the NSA to store the records and analyze them for five years after the calls transpired.
"Judge Leon focused largely on what happens (and what could happen) to the telephony metadata after it has been acquired by the NSA - e.g., how long the metadata could be retained and how the government could analyze it using sophisticated technology," Collyer wrote. "Smith
and the Supreme Court's other decisions applying the third-party disclosure principle make clear that this focus is misplaced."
The NSA's surveillance targets exactly the same information as the police sought in Smith
. What the agency does with the data after it is collected is "immaterial," the FISC ruled.
Comparing the scope of the NSA's program to Smith
is also irrelevant, the judge found.
"The pertinent question is whether a particular user has a reasonable expectation of privacy in the telephony metadata associated with his or her own calls," Collyer wrote. "For purposes of determining whether a search under the Fourth Amendment has occurred, it is irrelevant that other users' information is also being collected and that the aggregate amount acquired is very large."