Udall: Quit collecting Americans’ phone records

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Our senior Senator may be correct—“Udall:  Quit collecting Americans’ phone records”—that it’s time to “narrow the reach of Section 215 of the Patriot Act”.

However, even if controlling (albeit still secret) Foreign Intelligence Surveillance Act (“FISA”) court interpretations of that provision are arguably “at odds with the plain meaning of the law”, NSA activities seem clearly consistent with the plain text of the Patriot Act (2003).

Section 215 amended FISA (1978) by inserting Section 501, “Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations”, authorizing the FBI to seek “business records” from their custodians by making application to a FISA court and specifying (not proving) only that the records “are sought for an authorized investigation conducted in accordance with” guidelines approved by the Attorney General “to protect against international terrorism or clandestine intelligence activities”.

Records of every telephone call made (but not their contents) are “business records” routinely maintained by telephone companies, and – when an identifiable individual is party thereto – are lawfully provided to law enforcement only pursuant to a subpoena.

FISA judges have apparently ruled that NSA collection and consolidation in a searchable database of impersonal “meta-data” – multiple telephone companies’ call logs, which do not identify any individuals involved – constitutes a legitimate investigative and/or lead-generating tool which can reasonably contribute to national security.

Because our Constitution does not explicitly guarantee a right of “privacy”, and because the Fourth Amendment prohibits only “unreasonable searches and seizures”, the question boils down to:  who decides what is currently “reasonable?

Thus, AG Holder could modify applicable “guidelines”, Congress could enact clarifying language, or a FISA court could conclude that – with secrecy lost and disposable cell- phones plentiful – massive collection of “meta-data” is no longer a “reasonable” way to deter or “protect against international terrorism or clandestine intelligence activities”.

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