The flood of recent articles disclosing that the National Security Agency has engaged in a massive acquisition of information concerning the telephone communications of millions of Americans has shocked many. While sensationalizing this acquisition, most articles avoid discussing whether it has a legal basis. Questions abound, but two stand out. Does this acquisition violate the law - and should it? The Order. The Guardian published a copy of a top secret "Secondary Order" (the "Order") from the Foreign Intelligence Surveillance Court (the "FISA Court") that required Verizon to produce "all call records or 'telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States . . . . Telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication ... or the name, address, or financial information of any subscriber or customer." The Order included the "gag" provision customary in such orders. The Order's duration was almost three months, but it was not known whether Verizon received other orders, or whether other carriers received similar orders. Does this demand for information violate the law? The Fourth Amendment. The U.S. Supreme Court has not ruled on whether the Fourth Amendment is violated by warrantless government acquisition of information about communications in a foreign intelligence investigation. In United States v. Katz [an enhanced version of this opinion is available to lexis.com subscribers], the Court expressly reserved on whether a warrant was necessary for investigating national security matters. In the Keith Case, the Court held that the government must abide by the Fourth Amendment in domestic security matters. But Keith specifically cautioned that it was not speaking to matters involving foreign powers.
The Applicable Statute? The provision cited in the Order is a section in the Foreign Intelligence Surveillance Act ("FISA"), effective 1978 and since amended several times by the USA PATRIOT Act and amendments thereto. The FISA is premised on the proposition that statutes restraining the government in "conventional" criminal matters are overly restrictive for foreign intelligence matters. [footnotes omitted]
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