The NSA Just Got Six More Months of Unlimited Snooping in Your Phone Data

iStockPhoto

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


Almost as soon as Congress passed the USA Freedom Act earlier this month, which ended the National Security Agency’s mass collection of phone records under the Patriot Act, the government moved to keep that program around for as long as it could. Administration lawyers went before the Foreign Intelligence Surveillance Court, which oversees government surveillance requests, and argued that because the new law gives the NSA six months to shut down the program, the NSA should be able to keep vacuuming up this metadata until then—even though the Patriot Act had briefly expired, ending the legal authorization for such bulk collection.

Today we learned the government won that argument: the National Journal obtained a ruling from the FISA court saying this bulk collection can continue for the next six months.

“Congress deliberately carved out a 180-day period following the date of enactment in which such collection was specifically authorized,” wrote Judge Michael Mosman in the ruling. “For this reason, the Court approves the application.”

The good news for privacy advocates is that there was, for the first time, actually an argument at the FISA court on the issue. I wrote earlier this month about how the USA Freedom Act is meant to open up the court, and one of the ways it does so is by giving federal judges who sit on the FISA court the option of bringing in what’s called an “amicus panel,” a group of outside experts who can advise the court on privacy concerns. That panel hasn’t yet been appointed, but Mosman allowed former Virginia Attorney General Ken Cuccinelli to join the proceedings and argue against restarting bulk collection. Cuccinelli and FreedomWorks, the tea party-aligned conservative group, already tried to block the program earlier this month.

But judges can also decline to use an amicus panel or a stand-in. Dennis Saylor IV, another federal district judge who sits on the FISA court, chose this path in a case two weeks ago because he considered his pro-government ruling one in which “no reasonable jurist would reach a different decision.”

That, civil liberties advocates say, is exactly why the amicus panel is needed. “His decision does not even acknowledge the existence of any other interpretation of the law,” Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, notes in an email. “That’s simply bad judging.…Congress may need to consider whether to make amicus participation mandatory rather than leave it to the court’s discretion.”

A footnote in Saylor’s decision revealed another potential basis for the FISA court to reject the privacy panel: money. “There may be other circumstances, as well, where appointment of an amicus curiae is not appropriate,” Saylor wrote. “For example, such an appointment would in most instances result in some degree of additional expense and delay.”

Saylor didn’t rule on whether time and cost are sufficient grounds not to appoint an amicus. But as Steve Vladeck of American University’s Washington College of Law points out, “Judge Saylor tries hard to say he’s not saying that, but he is surely suggesting it. That makes no sense to me, since there’s no other context in which courts pay for amici.” The footnote still leaves open the prospect that the FISA court could choose not to appoint outside experts simply because finding them could be a pain in the ass.

WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We can’t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

The upshot: Being able to rally $253,000 in donations over these next few weeks is vitally important simply because it is the number that keeps us right on track, helping make sure we don't end up with a bigger gap than can be filled again, helping us avoid any significant (and knowable) cash-flow crunches for now. We used to be more nonchalant about coming up short this time of year, thinking we can make it by the time June rolls around. Not anymore.

Because the in-depth journalism on underreported beats and unique perspectives on the daily news you turn to Mother Jones for is only possible because readers fund us. Corporations and powerful people with deep pockets will never sustain the type of journalism we exist to do. The only investors who won’t let independent, investigative journalism down are the people who actually care about its future—you.

And we need readers to show up for us big time—again.

Getting just 10 percent of the people who care enough about our work to be reading this blurb to part with a few bucks would be utterly transformative for us, and that's very much what we need to keep charging hard in this financially uncertain, high-stakes year.

If you can right now, please support the journalism you get from Mother Jones with a donation at whatever amount works for you. And please do it now, before you move on to whatever you're about to do next and think maybe you'll get to it later, because every gift matters and we really need to see a strong response if we're going to raise the $253,000 we need in less than three weeks.

payment methods

WE'LL BE BLUNT

It is astonishingly hard keeping a newsroom afloat these days, and we need to raise $253,000 in online donations quickly, by October 7.

The short of it: Last year, we had to cut $1 million from our budget so we could have any chance of breaking even by the time our fiscal year ended in June. And despite a huge rally from so many of you leading up to the deadline, we still came up a bit short on the whole. We can’t let that happen again. We have no wiggle room to begin with, and now we have a hole to dig out of.

Readers also told us to just give it to you straight when we need to ask for your support, and seeing how matter-of-factly explaining our inner workings, our challenges and finances, can bring more of you in has been a real silver lining. So our online membership lead, Brian, lays it all out for you in his personal, insider account (that literally puts his skin in the game!) of how urgent things are right now.

The upshot: Being able to rally $253,000 in donations over these next few weeks is vitally important simply because it is the number that keeps us right on track, helping make sure we don't end up with a bigger gap than can be filled again, helping us avoid any significant (and knowable) cash-flow crunches for now. We used to be more nonchalant about coming up short this time of year, thinking we can make it by the time June rolls around. Not anymore.

Because the in-depth journalism on underreported beats and unique perspectives on the daily news you turn to Mother Jones for is only possible because readers fund us. Corporations and powerful people with deep pockets will never sustain the type of journalism we exist to do. The only investors who won’t let independent, investigative journalism down are the people who actually care about its future—you.

And we need readers to show up for us big time—again.

Getting just 10 percent of the people who care enough about our work to be reading this blurb to part with a few bucks would be utterly transformative for us, and that's very much what we need to keep charging hard in this financially uncertain, high-stakes year.

If you can right now, please support the journalism you get from Mother Jones with a donation at whatever amount works for you. And please do it now, before you move on to whatever you're about to do next and think maybe you'll get to it later, because every gift matters and we really need to see a strong response if we're going to raise the $253,000 we need in less than three weeks.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate