[governance] FW: [Dewayne-Net] U.S. Telcos Have Never Challenged NSA Demands for Your Metadata

[michael gurstein]

Why distinguishing between the private sector pursuing its
private/commercial interests can/should be clearly distinguished from Civil
Society pursuing the public interest...

M

-----Original Message-----
From: listmom at warpspeed.com [mailto:listmom at warpspeed.com] On Behalf Of
Dewayne Hendricks
Sent: Wednesday, September 18, 2013 2:34 AM
To: Multiple recipients of Dewayne-Net - Sent by
Subject: [Dewayne-Net] U.S. Telcos Have Never Challenged NSA Demands for
Your Metadata

U.S. Telcos Have Never Challenged NSA Demands for Your Metadata By DAVID
KRAVETS
09.17.13
<http://www.wired.com/threatlevel/2013/09/telcos-metada-orders/>

Since at least 2006 a secret spy court has continuously compelled the
nation's carriers to hand over records of every telephone call made to,
from, or within the United States.

But none of the phone companies have ever challenged the orders in court,
according to an August 29 opinion (.pdf) by the Foreign Intelligence
Surveillance Court, which was declassified today.

"To this date, no holder of records who has received an Order to produce
bulk telephony metadata has challenged the legality of such an Order," reads
the ruling. "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 FISC orders cited Section 215 of the Patriot Act to require phone
companies like Verizon and AT&T to hand over the phone numbers of both
parties involved in all calls, the international mobile subscriber identity
(IMSI) number for mobile callers, calling card numbers used in the call, and
the time and duration of the calls.

To be sure, any challenge to the surveillance program would have been done
before the court in secret, and it's unlikely one would have been
successful.

That carriers willfully provided the metadata without blinking a legal eye,
however, is cause for alarm, as the telcos appear to be the only ones so far
with legal standing to make a challenge to the bulk collection orders. The
Electronic Frontier Foundation, American Civil Liberties and others have
brought challenges, but the legal fight on whether they have the right to
sue remains undecided.

The bulk collection program came to public light in June, when the Guardian
published a FISC order on the topic leaked to the media outlet by NSA
whistleblower Edward Snowden.

The court declassified (.pdf) an opinion today in the wake of Snowden's
leaks.

"This Court is mindful that this matter comes before it at a time when
unprecedented disclosures have been made about this and other
highly-sensitive programs designed to obtain foreign intelligence
information and carry out counterterrorism investigations. According to NSA
Director Gen. Keith Alexander, the disclosures have caused 'significant and
irreversible damage to our nation,'" according to the opinion.

The metadata surveillance became lawful with a 2006 update to the Patriot
Act. But it's been reported that most major carriers were providing the NSA
with bulk metadata voluntarily before then in the wake of the 2001 terror
attacks.

So the Electronic Frontier Foundation sued the nation's carriers. After a
San Francisco federal judge refused to toss the lawsuit, Congress in 2008
passed legislation immunizing the telcos  from ever being sued for
forwarding customer data to the NSA.

"It's disappointing that the telecoms did not stand up for their users,"
Kurt Ospahl, an EFF staff attorney, said in a telephone interview.

The opinion declassified today spells out the court's interpretation of why
it is legal under the Patriot Act that all calling records can be forwarded
to the NSA. It also notes that there is no adversarial process, meaning
without a third-party challenger, the court relies solely on the
government's assertions. Every 90 days the court orders carriers to forward
all calling metadata on a rolling basis.

[snip]

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