Secret court declassifies opinion providing rationale for metadata sharing

[dkf]

Secret court declassifies opinion providing rationale for metadata sharing
FISC relies on a 1970s-era case that established "third-party doctrine."

by Cyrus Farivar - Sept 17 2013, 12:00pm HST


For the first time, the United States’ most secret court, the Foreign Intelligence Surveillance Court (FISC), has published its legal rationale as to why the telecom metadata sharing program under Section 215 of the PATRIOT Act is legitimate. The 46-page opinion was authored August 29, 2013, but was not published on the FISC’s website until Tuesday.

The opinion was only now published due to FISC judge Reggie Walton, who ordered the government to conduct a declassification review of such decisions and related orders in the wake of the leaks provided by former NSA contractor Edward Snowden. As a result, this August 2013 order and two others have now been declassified. Walton's declassification order was made at the request of Judge Claire Eagan, who herself authored those opinions.

In her opinion (PDF), Judge Eagan wrote that because terrorists use phones (or in legal-speak: “telephonic systems”) and some of those phones traverse the United States’ phone network, metadata is therefore considered the business records of the telecoms involved.

In 1976, the Supreme Court ruled in a landmark case, known as Smith v. Maryland, that when someone calls a telephone number, that number has been disclosed to a third party (the phone company). Therefore, the Supreme Court held, it is not private (because it was disclosed through the act of making the call), and the government can have easy access to those call records—this is the origin of the "third-party doctrine." So, Judge Eagan concluded, if the handover of one person's phone records in one instance is legal, so too is the wholesale handover of phone metadata en masse.

"It's just showing that [the Department of Justice] is continuing its pattern of if you give them an inch they'll take a mile," Kurt Opsahl, a staff attorney at the Electronic Frontier Foundation, told Ars. "They've relied so heavily on [the Smith decision] that if Smith were narrowed [by a future court], then they would have to redo the analysis of this and a lot of the other bulk collection programs."

http://arstechnica.com/tech-policy/2013/09/secret-court-declassifies-opinion-providing-rationale-for-metadata-sharing/

[Jackpine Radical]

1. Amazingly twisted logic.

By this reasoning there would be no such thing as privacy for any health information that passes between doctors, patients and third parties such as insurance corporations. The information is obviously part of the insurance company's business records. If a doc writes you a prescription, you have to take it to a pharmacist, and it becomes part of his business records. If there is no restriction on business records, there is no HIPAA. (But HIPAA is something of a joke anyway.)

[BelgianMadCow]

2. I look forward to more BS legalistic truthiness

justifying the unjustifiable. Thanks for posting, bookmarked. Am gonna check on the other two released opinions.