By the end of this month, the Foreign Intelligence Surveillance Court is expected to issue what could be the most important order in its 35-year hidden history, ruling on a motion filed by the ACLU that asks the court to publish all of its prior opinions evaluating the meaning, scope and constitutionality of Section 215 of the Patriot Act.
Codified as part of the omnibus Foreign Intelligence Surveillance Act, this is the law that empowers the FBI and the National Security Agency to obtain secret orders from the Foreign Intelligence Surveillance Court compelling third parties such as phone companies to produce “tangible things” such as individual phone activity records related to foreign intelligence or terrorism investigations. The orders are accompanied by admonitions forbidding disclosure of their existence.
The section served as the legal basis for the surveillance court order published in June by The Guardian that directed Verizon Business Services to produce on an ongoing daily basis “all call detail records or ‘telephony metadata’... for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”
So how will the surveillance court rule? If past practice is any indication, the motion will be denied in an order that is either kept under seal, worded very generally or heavily redacted for public consumption. From its inception through 2012, the court rejected a scant 40 government surveillance applications while approving nearly 34,000, virtually all of which have remained classified.
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