NSA logging our phone calls – rubber-stamped by FISA Court again

The Foreign Intelligence Surveillance Court released a new legal opinion on Friday that reauthorized the once-secret National Security Agency program that keeps records of every American’s phone calls. The opinion also sought to plug a hole in a similar ruling made public last month.

Judge Eagan’s opinion, which was made public last month, held that the N.S.A. could lawfully collect the bulk data about all Americans’ calls without warrants, in part because of a 1979 case, Smith v. Maryland. In that matter, the Supreme Court held that call records were not protected by the Fourth Amendment because suspects had exposed that metadata to their phone companies and had no reasonable expectation of privacy.

Judge Eagan’s opinion has been criticized, in part, because she made no mention of a landmark privacy case decided by the Supreme Court in 2012. That case, United States v. Jones, held that it was unconstitutional for the police to use a GPS tracking device to monitor a suspect’s movements without a warrant.

Although the Supreme Court decided the case on narrow grounds — citing that the police had to trespass on the suspect’s property when installing the device — five of the nine justices separately called into question whether the 1979 precedent was valid in an era of modern technology. They suggested that the automated long-term collection of data about someone’s location might raise Fourth Amendment issues even though each individual movement is disclosed to other people.

In her new opinion, Judge McLaughlin acknowledged the existence of the 2012 case but explained…“The Supreme Court may someday revisit the third-party disclosure principle in the context of 21st-century communications technology, but that day has not arrived,” so the 1979 precedent remains the controlling legal precedent, she wrote.

Captive courtrooms like those of Judges Eagan and McLaughlin – and Walton, noted at the end of the article – spend most of their judicial time writing opinions to justify decisions made on behalf of the NSA. Questions of year or century don’t really mean a whole boatload to predictable decisions.

RTFA if you think you’re missing anything. You get to see Walton declare his independence because he asked for more information a number of times – but never stepped out of line on his rulings.

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