Earlier today, the 2nd United States Circuit Court of Appeals issued an order refusing to immediately halt the federal government’s practice of collecting Americans’ phone records during a 180-day transition period.
The underlying lawsuit challenged the data collection program conducted by the National Security Agency (NSA) as supposedly authorized by the Patriot Act. The NSA collects metadata about telephone calls made by and to Americans that can later be searched. The collected data does not include the contents of a telephone call but rather details about the call, such as phone numbers and call length.
In May, the court held that the Patriot Act did not allow for this type of bulk telephone metadata collection and ruled the practice illegal.
As a result of the court’s ruling in June, Congress passed the Freedom Act, which President Obama then signed into law.
The Freedom Act amends the Patriot Act to some degree and permits the government to collect call detail records only if the call meets certain “additional requirements” including a “reasonable articulable suspicion that such specific selection term is associated with a foreign power . . . or an agent of a foreign power engaged in international terrorism or activities in preparation therefor.”
Essentially, the Freedom Act provides for a more narrowly tailored and targeted collection of call detail records.
The Freedom Act also requires the government to adopt procedures that “require the prompt destruction” of call detail records produced that it determines are not “foreign intelligence information.”
As illustrated in today’s court ruling, the latest issue is the “Effective Date” of the Freedom Act, which is 180 days after its enactment.
On the day the Freedom Act was enacted, the government asked the Foreign Intelligence Surveillance Court (FISC) to allow it to continue the telephone metadata program during the 180-day transition period.
However, those bringing the lawsuit asked the court to stop the government from continuing to collect and search call detail records during the 180-day transition period.
The court denied their request saying that the government, including the President and Congress, reached a compromise by ending the telephone metadata program but to allow for a 180-day transition period.