No telco ever disobeyed NSA phone record orders

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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.”

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