No telecommunications company ever refused to follow the secret US Foreign Intelligence Surveillance Court’s orders to turn over bulk phone records under the Patriot Act, despite a legal mechanism to do so, the court has revealed.
"To date, no holder of records who has received an order to
produce bulk telephony metadata has challenged the legality of
such an order," Foreign Intelligence Surveillance Court Judge
Claire Eagan wrote. Her opinion was made public on Tuesday.
"Indeed, no recipient of any Section 215 order has challenged
the legality of such an order, despite the explicit statutory
mechanism for doing so," the judge informed, explaining her
reasons for reauthorizing the phone records collection "of
specified telephone service providers" for three months.
However, according to USA Today, not all phone companies caved in
to collaborate with the government. In 2006, before bulk phone
records collection was moved under the authority of the FISA
court, the only big telecommunications company who refused to
help the NSA was Qwest, sources told the newspaper.
On 29 August, Eagan not only approved the US government’s request
for the mass collection of data from an unidentified
telecommunications firm, but also ordered it declassified.
The collection program, which the government claims is authorized
under Section 215 of the Patriot Act, was disclosed by former CIA
employee and NSA contractor Edward Snowden.
But Eagan has stated that the collection of phone records does
not actually violate the Constitution's Fourth Amendment, which
prohibits unreasonable search and seizure.
The judge said that under Section 215, Congress provided for
judicial review of FISA Court orders — first to the FISA Court of
Review and, ultimately, to the US Supreme Court. That provides
for a "substantial and engaging adversarial process to test the
legality of this court's orders under Section 215," she noted.
Eagan also stressed in her opinion that prior to Congress
reauthorizing Section 215 in 2011, the executive branch provided
the intelligence committees of both the House and the Senate with
detailed information about how the FISA Court was approving bulk
telephone collection under the section. She said the executive
branch worked with congressional committees to make sure that
each member of Congress knew, or had the opportunity to know, how
Section 215 was being implemented under the court's orders.
Director of National Intelligence James R. Clapper said in a
statement that Eagan’s opinion "affirms that the bulk
telephony metadata collection is both lawful and constitutional.
The release of this opinion is consistent with the president's
call for more transparency on these valuable intelligence
programs."
Deputy legal director of the American Civil Liberties Union,
Jameel Jaffer, said that as a defense of the phone records
collection program, the opinion is "completely
unpersuasive," however.
Earlier this month internet giants Facebook, Yahoo, Google and
Microsoft addressed the US Foreign Intelligence Surveillance
Court to legally allow them to make public the data requests
received from the NSA as part of the infamous PRISM program.
Yahoo is petitioning the FISA court to disclose a 2008 incident
when it refused to comply with bulk NSA surveillance until the
court ordered it to turn over the data. The company says it has
been unable to engage fully in the public debate about whether
the government has “properly used its powers,” because it
has imposed a restraint on Yahoo's freedom of speech.
In a filing with the court, Yahoo said disclosure of the opinion
and briefs would allow the company to "demonstrate that it
objected strenuously to the directives that are now the subject
of debate, and objected at every stage of the proceeding," but
that its objections were overruled.
Earlier this week CEO Marissa Mayer told reporters that Yahoo was
unable to release classified data on the NSA as it would have
amounted to treason. She referenced Yahoo’s unsuccessful attempt
to sue the Foreign Intelligence Surveillance Authority (FISA),
the official body that provides the legal backing for the NSA’s
mass surveillance programs, in 2007.
However, not all US companies have their anger turned on NSA
privacy violation. On Wednesday, Verizon President John Stratton lashed out at Google, Yahoo and
Microsoft, criticizing their decision to go to court. Verizon
itself wasn’t spared criticism when one of Snowden’s earlier
leaks revealed that it handed over large amounts of customer
metadata to the NSA on a regular basis.
"I appreciate that the consumer-centric IT firms… that it's
important to grandstand a bit, and wave their arms and protest
loudly so as not to offend the sensibility of their
customers," Stratton said in Tokyo, as cited by ZDnet.
"This is a more important issue than that which is generated
in a press release. This is a matter of national security."