FISA: 215 Collection

Two Noteworthy Features of the Most Recent 215 Ruling

By Raffaela Wakeman
Friday, October 18, 2013, 2:32 PM

As Ben noted, the Foreign Intelligence Surveillance Court (FISC) has redacted and made available another memorandum and primary order dealing with Section 215 telephone metadata collection.

Two things struck me about the memorandum, which, like the primary order, was authored by FISC Judge Mary McLaughlin and dated October 11.

First, McLaughlin essentially follows the views of her fellow FISC Judge Claire Eagan, as set forth in the latter's August 29 opinion.  Judge McLaughlin categorizes Judge Eagan's interpretation of the term "relevance" as broad, but nonetheless reaches the same conclusion Eagan did: telephone metadata can be collected in bulk, under Section 215's "relevance" standard. Like Judge Eagan did in August, she points to Congressional re-authorization as additional support for that interpretation of Section 215:

Accordingly, the re-enactment of Section 215 without change in 2011 triggered the doctrine of ratification through re-enactment, which provides a strong reason for this Court to adhere to its prior interpretation of Section 215.

Second---and in what is, to my knowledge, a first---Judge McLaughlin's memorandum confronts what has been (for some) a long-lingering Elephant in the Constitutional Room: the Supreme Court's 2012 decision in United States v. Jones, the GPS tracking case.  Judge McLaughlin distinguishes the latter, where the Supreme Court, in finding a "search" for Fourth Amendment purposes, made much of the physical intrusion involved in affixing a GPS device to a vehicle, for 28 days.  But here, reasons McLaughlin, there's no physical intrusion.

Separately, Judge McLaughlin notes Justice Sonia Sotomayor's concurring opinion in Jones, which suggested a possible revision, down the line, of the sometimes loathed, sometimes loved, "third-party" rule, laid out in Smith v. Maryland.  That hasn't happened yet, as Judge McLaughlin writes, thus the third-party rule remains good law:

The Supreme Court may some day revisit the third-party disclosure principle in the context of twenty-first century communications technology, but that day has not arrived. Accordingly, Smith remains controlling with respect to the acquisition by the government from service providers of non-content telephony metadata such as the information to be produced in this matter.