Smith v. Obama

Concerning the Legality of the NSA's Section 215 Bulk Metadata Collection Program

Top News

  • Freedom Act Goes Into Effect, NSA Bulk Data Collection Ends: The Director of National Intelligence has announced that the NSA's bulk collection of domestic telephone records under "Section 215" ended yesterday when the USA Freedom Act took effect. The Freedom Act ended the NSA's 215 Program and established new transparency and accountability rules for the Foreign Intelligence Surveillance Court. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. (Nov. 30, 2015)
  • Senate Passes FREEDOM Act, Ends NSA Bulk Collection: The Senate has passed the USA FREEDOM Act, sponsored by Senator Patrick Leahy (D-VT) and Senator Mike Lee (R-TX). The Act, which the President is expected to sign, ends the NSA bulk collection of domestic telephone records and establishes new transparency and accountability rules for the Foreign Intelligence Surveillance Court. In 2012, EPIC testified before the House Judiciary Committee on the need to reform the Surveillance Court. In 2013, EPIC filed a petition in the Supreme Court, In re EPIC, arguing that the NSA program was unlawful. In 2014, EPIC and a broad coalition urged the President to end the NSA surveillance program. (Jun. 2, 2015)
  • More top news »
  • White House Begins Shutdown of Bulk Collection Program » (May. 27, 2015)
    According to media reports, the Administration has decided not to renew the legal authority for the NSA’s telephone record collection program. EPIC and a coalition of privacy organizations had urged the President to end the program, which he said he would do in 2014. In 2013, EPIC filed a petition in the US Supreme Court, supported by technical experts, legal scholars, and former members of the Church Committee, arguing that the program was unlawful. The Senate is expected to take up the USA Freedom Act on May 31, the day before key provisions of the Patriot Act expire.
  • Federal Appeals Court Strikes Down NSA Bulk Record Collection Program » (May. 7, 2015)
    The Second Circuit Court of Appeals ruled today that the NSA's telephone record collection program exceeds legal authority. The government claimed that it could collect all records under the Section 215 "relevance" standard. But the court rejected that argument and held that "such an expansive concept of 'relevance' is unprecedented and unwarranted." The conclusion mirrors the argument EPIC, and a coalition of technical expert, legal scholars, and former members of the Church Committee made in Petition to the Supreme Court in 2013. EPIC explained in its petition, "It is simply not possible that every phone record in the possession of a telecommunications firm could be relevant to an authorized investigation." The Second Circuit found that Section 215 does not "authorize anything approaching the breadth of the sweeping surveillance at issue here."
  • Pew Survey: 57% of Americans Report That Government Surveillance of US Citizens Is "Unacceptable" » (Mar. 16, 2015)
    The Pew Research Center has published a new report on "Americans' Privacy Strategies Post-Snowden". According to the Pew survey, 34% of Americans who know about the NSA's bulk collection of telephone records have taken "at least one step to hide or shield their information from the government." Further, 57% said that it is unacceptable for the US government to monitor the communications of US citizens. Yet 54% believe it would be "somewhat" or "very" difficult to find "tools and strategies that would help them be more private" online. EPIC maintains an Online Guide to Practical Privacy Tools and resources on Public Opinion and Privacy. EPIC also petitioned the US Supreme Court to halt NSA surveillance of domestic telephone calls.
  • UK Privacy Groups Prevail in GCHQ Spying Case » (Feb. 9, 2015)
    A British court that oversees intelligence gathering has ruled that GCHQ, the British spy agency, violated international human rights law with the mass collection of cellphone and Internet data. Last year, the same court ruled that data could lawfully be transferred between US and UK intelligence agencies. That earlier decision is on appeal to the European Court of Human Rights in Strasbourg. In 2013, following the disclosure of the "Verizon order," which authorized the NSA's routine collection of US telephone records, EPIC brought a petition to the US Supreme Court, arguing that the agency practice exceeded the "Section 215" authority. Dozens of legal scholars and former members of the Church Committee supported the EPIC petition.
  • Schneier: Over 700 Million People Taking Steps to Avoid NSA Surveillance » (Dec. 17, 2014)
    Famed technologist and EPIC Advisory Board member Bruce Schneier pushed back against media claims that Edward Snowden's revelations about the NSA have had little impact on Internet users. A recent global survey found that 39% of Internet users who have heard of Snowden have taken steps to protect their online privacy. Some news articles have characterized these users as "merely 39%" and "only 39%." But Schneier did the math and found that Snowden’s impact has been far from insignificant: "706 million people have changed their behavior on the Internet because of what the NSA and GCHQ are doing." A recent Pew survey also indicates that the NSA revelations have had a dramatic impact on Internet users. Last year, EPIC filed a petition to the U.S. Supreme Court to stop the NSA's collection of domestic telephone records, following the release of the "Verizon Order." For more information, see EPIC: In re EPIC, EPIC: Smith v. Obama, and EPIC: Foreign Intelligence Surveillance Act Reform.
  • British Court Upholds Mass Surveillance by UK Spy Agency » (Dec. 8, 2014)
    The Investigatory Powers Tribunal, which reviews complaints of unlawful surveillance by Britain's intelligence agencies, ruled that mass collection of online communications is legal. The complaint was brought by several privacy rights groups in the UK and focused on GCHQ's electronic surveillance program, TEMPORA, and information the UK spy agency obtained through NSA's PRISM and Upstream programs. The privacy rights groups plan to appeal the decision to the European Court of Human Rights. EPIC previously challenged the NSA's mass surveillance of U.S. phone records in a 2013 petition to the Supreme Court. EPIC's petition argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. The EPIC petition was supported by legal scholars and former members of the Church Committee. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform.
  • Senator Leahy Calls on the President to End Bulk Collection of Phone Records » (Dec. 4, 2014)
    Today Senator Patrick Leahy (D-VT) urged President Obama to end the dragnet collection of U.S. telephone records under Section 215 of the Patriot Act. The current authorization for the NSA's bulk collection program expires on Friday, December 5, 2014. Senator Leahy's comments follow the recent efforts to pass the USA FREEDOM Act of 2014, which would end the NSA's surveillance program. Senator Leahy said that ending the reauthorization of the program "would not be a substitute for comprehensive surveillance reform legislation - but it would be an important first step." In June EPIC, joined by many organizations, urged the President and Attorney General to end the bulk collection program. And in 2013 EPIC petitioned the Supreme Court, arguing that a special surveillance court exceeded its authority when it ordered Verizon to turn over records on all of its customers to the NSA. For more information, see In re EPIC and EPIC: Foreign Intelligence Surveillance Act Reform.
  • Senate Republicans Block US Surveillance Reform » (Nov. 19, 2014)
    An effort led by Senator Patrick Leahy (D-VT) to pass the USA FREEDOM Act failed on a narrow procedural vote last night. The FREEDOM Act would have ended the NSA's bulk collection of US telephone records. The bill would also improve oversight and accountability of the Foreign Intelligence Surveillance Act. Last year, EPIC petitioned the Supreme Court to suspend the bulk collection of Americans' telephone records. EPIC's petition was supported by dozens of legal scholars and former members of the Church Committee. EPIC also testified in Congress in support of improved reporting for domestic surveillance activities. For more information, see EPIC: Foreign Intelligence Surveillance Act Reform and In re EPIC.
  • Federal Appeals Court to Hear Challenge to NSA Surveillance Program » (Nov. 3, 2014)
    The U.S. Court of Appeals for the D.C. Circuit is scheduled to hear arguments tomorrow (November 4, 2014) in Klayman v. Obama, a challenge to the NSA's domestic surveillance program. Klayman is one of several cases challenging the NSA's ongoing collection of domestic telephone records. In the Klayman case, Judge Richard Leon ruled that the NSA likely violated the Fourth Amendment. The government has appealed that decision. In a related case before the Ninth Circuit, EPIC filed an amicus curiae brief, arguing that communications data should be protected under the Fourth Amendment and that the 1979 decision Smith v. Maryland no longer applies, given the evolution of modern communications technology. Last year EPIC petitioned the US Supreme Court to end the NSA program, arguing that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered Verizon to turn over all domestic call records to the NSA. The EPIC Petition was supported by legal scholars, technical experts, and former members of the Church Committee. For more information, see EPIC: Klayman v. Obama, EPIC: Smith v. Obama, In re EPIC.
  • FCC Levies $10 Million Fine Against Carriers for Breach of Consumer Privacy » (Oct. 24, 2014)
    The Federal Communications Commission announced today its largest privacy fines to date. The agency's first data security case stems from an investigation of TerraCome and YourTel American who "stored Social Security numbers, names, addresses, driver's licenses, and other sensitive information belonging to their customers on unprotected Internet servers that anyone in the world could access." The carriers will be fined $10 million for their breach of consumer privacy. Last month, the FCC reached a $7.4 million settlement with Verizon over privacy violations. EPIC previously urged the FCC to determine whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. Also, in response to a 2005 EPIC petition, the FCC strengthened privacy protections for telephone records, which EPIC defended in a "friend of the court" brief for the DC Circuit, establishing support for opt-in privacy safeguards. For more information, see EPIC: NCTA v. FCC (Concerning privacy of CPNI) and In re EPIC (NSA Telephone Records Surveillance).
  • New Report Reviews Progress on Signals Intelligence Reform » (Oct. 23, 2014)
    The Office of the Director of National Intelligence has released the first report on the implementation of Presidential Policy Directive 28. In January, the President proposed a revised policy for foreign signals intelligence. Under the revised directive, PPD-28, intelligence agencies are required to "review and update" their policies and "establish new ones as necessary" to safeguard personal information collected through signals intelligence. Signals intelligence activities must also be "as tailored as feasible," and there must be limitations on the querying, use, dissemination, and retention of personal information. The report states that all intelligence agencies in place by January 17, 2015, one year after the President's speech. EPIC previously challenged the NSA's bulk collection of domestic and international call detail records. EPIC has also filed Freedom of Information Act requests with the NSA and other intelligence agencies elements seeking disclosure of current procedures regarding surveillance conducted under Executive Order 12333. For more information, see EPIC: EO 12333 and In re EPIC.
  • Appeals Court Limits Military Surveillance of Civilian Internet Use » (Sep. 26, 2014)
    The U.S. Court of Appeals for the Ninth Circuit ruled in United States v. Dreyer that an agent for the Naval Criminal Investigative Service violated Defense Department regulations and the Posse Comitatus Act when he conducted a surveillance operation in Washington state to identify civilians who might be sharing illegal files. The 1878 Act prevents the U.S. military from enforcing laws against civilians. The appeals court ruled that the NCIS intrusion into civilian networks showed “a profound lack of regard for the important limitations on the role of the military in our civilian society.” The court also ruled that the evidence obtained by NCIS should be suppressed to “deter future violations.” In a petition to the Supreme Court, EPIC challenged the NSA’s surveillance of domestic communications. The NSA is a component of the Department of Defense. For more information, see In re EPIC and EPIC v. DOJ: Warrantless Wiretapping Program.
  • EPIC, Legal Scholars, Technical Experts Urge Federal Appeals Court to Safeguard Telephone "Metadata" » (Sep. 10, 2014)
    EPIC has filed an amicus curiae brief, joined by 33 technical experts and legal scholars, in support of a challenge to the NSA telephone record collection program. The case Smith v. Obama will be heard by the Court of Appeals for the Ninth Circuit this fall. Earlier this year, a lower court ruled that the Fourth Amendment does not protect telephone call record information because of a 1979 case Smith v. Maryland. In the brief for the federal appeals court, EPIC wrote that "changes in technology and the Supreme Court's recent decision in Riley v. California favor a new legal rule that recognizes the privacy interest inherent in modern communications records." EPIC routinely participates as a friend of the court in cases raising novel privacy and civil liberties issues. For more information, see EPIC: Smith v. Obama, EPIC: Riley v. California, and EPIC Amicus Briefs.
  • Federal Communications Commission Fines Verizon $7.4 Million for Violating Consumer Privacy » (Sep. 4, 2014)
    Verizon will pay the Federal Communications Commission $7.4 million to settle claims that the company violated the privacy rights of nearly two million consumers. The FCC found that Verizon failed to inform consumers of their privacy rights, including how to prevent their personal information from being used for marketing purposes. The Verizon payment is the largest consumer privacy settlement in FCC history. In 2013, EPIC urged the FCC to investigate Verizon's disclosure of customer record information to the NSA. Also, in response to a 2005 EPIC petition, the FCC strengthened privacy protections for telephone records, which EPIC defended in a "friend of the court" brief for the DC Circuit, establishing support for opt-in privacy safeguards. For more information, see EPIC: Customer Proprietary Network Information, EPIC: NCTA v. FCC (Concerning privacy of CPNI), EPIC: US West v. FCC (Privacy of Telephone Records), and In re EPIC (NSA Telephone Records Surveillance).
  • Privacy Panel Backs PRISM Program » (Jul. 3, 2014)
    In a surprising report, the US Privacy and Civil Liberties Oversight Board has endorsed the US government's routine collection of the Internet activities of non-US persons, broadly referred to as the "PRISM Program." The NSA obtains this information from Internet companies located in the United States. The Board cited the value of the program and compliance with the law, but said little about the impact on non-US persons. EPIC opposed a similar program concerning the collection of domestic telephone records in a petition to the US Supreme Court last year. EPIC has also said that the collection of communications by the US should be subject to international privacy law, such as the International Covenant on Civil and Political Rights. It is anticipated that foreign countries will continue to transfer cloud-based services away from US firms because of the lax privacy safeguards in the United States. For more information, see EPIC: In re EPIC and EPIC: International Privacy Standards.
  • Obama Renews Unlawful NSA Bulk Record Collection Program » (Jun. 20, 2014)
    Today the Attorney General and the Director of National Intelligence announced that the President will seek a renewal of the court order authorizing the NSA's bulk collection of American telephone records through September 12, 2014. The President has chosen to renew this order despite his promise in March 2014 to end the bulk collection program and the widespread opposition from members of Congress, and the recommendations of expert panels. The Attorney General's statement suggests that "legislation would be required" to end the program, but it was the President's decision to seek renewal of the Foreign Intelligence Surveillance Court order. EPIC, along with 25 other privacy organizations, wrote a letter to the President last week urging him not to renew the order. Last summer, EPIC petitioned the Supreme Court to end the NSA's telephone record collection program. EPIC's argued that the Foreign Intelligence Surveillance Court exceeded its authority when it ordered the production of all domestic telephone records. For more information, see In re EPIC.
  • House Judiciary Committee to Consider Bill to End Bulk Surveillance, Improve NSA Oversight » (May. 5, 2014)
    The House Judiciary Committee has scheduled a markup of the USA Freedom Act. The proposed "Manager's Amendment", sponsored by James Sensenbrenner (R-WI), would prevent bulk collection of phone records and other business records, and would limit the scope of phone record searches. The bill would also (1) limit the collection of US persons communications by the NSA's PRISM program, (2) require public reports on the use of FISA surveillance, (3) require declassification of significant FISA Court opinions, and (4) create a public advocate at the FISA Court. In 2012, EPIC testified before the House Judiciary Committee on the need for public reports and the declassification of significant FISC opinions. In 2013, EPIC filed a petition with the Supreme Court, alleging that the bulk collection of telephone record was unlawful. For more information, see EPIC: FISA Reform and In re EPIC.
  • European High Court Strikes Down Data Retention Law » (Apr. 8, 2014)
    In a far-reaching and dramatic opinion, the European Court of Justice has ruled that the mass storage of telecommunications data violates the fundamental right to privacy and is illegal. The Data Retention Directive required telephone and Internet companies to keep traffic and location data as well as user identifying information for use in subsequent investigations of serious crimes. According to the Court, the Directive imposed "a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary." The Court found that the collection of metadata constitutes the processing of personal data and must therefore comply with Article 8 of the Charter of Rights. The Court also said to find a privacy violation, "it does not matter whether the information on the private lives concerned is sensitive or whether the persons concerned have been inconvenienced in any way." Last year EPIC, joined by dozens of legal scholars and former members of the Church Committee, urged the US Supreme Court to find the NSA's telephone record collection program unlawful. For more information, see EPIC - Data Retention, In re EPIC.
  • President Obama Renews Unlawful, Ineffective Surveillance Authority » (Mar. 29, 2014)
    According to the Attorney General and the Director of National Intelligence, President Obama has renewed the NSA's authority to collect all of the telephone records of all American telephone customers. The "Section 215" program exceeded Congressional authority and was found to be ineffective by two expert panels. At a speech on January 17, 2014, President Obama ordered a transition that will end the Section 215 bulk telephony metadata program as it currently exists. However, according to DNI Clapper, the United States filed an application with the FISC to reauthorize the existing program as previously modified for 90 days, and the FISC issued an order approving the government's application. The order issued expires on June 20, 2014. EPIC and others have strongly objected to the renewal of the 215 program. For more information, see EPIC In re EPIC.
  • Senator Leahy Urges President to End NSA Record Collection Program on Friday » (Mar. 27, 2014)
    In remarks published this week, Senator Patrick Leahy, Chairman of the Senate Judiciary Committee and co-sponsor of the USA FREEDOM Act, said "I welcome the President's statement that he plans to end the bulk collection of American’s phone records. That is a key element of what I and others have outlined in the USA FREEDOM Act, and that is what the American people have been demanding." Senator Leahy added, "the President could end bulk collection once and for all on Friday by not seeking reauthorization of this program. Rather than postponing action any longer, I hope he chooses this path." EPIC and others have urged the President not to renew the NSA telephone record collection authority when it expires this week. For more information, see In re EPIC.
  • Deadline Approaches for End of NSA's Telephone Record Collection Program » (Mar. 24, 2014)
    March 28 marks the deadline set by President Obama to end the NSA's bulk collection of American's telephone records. Last week, Attorney General Eric Holder confirmed that the Justice Department is ready to meet the deadline that the President has set. After extensive meetings with leaders of the Intelligence Community, both the President's Review Group and the Privacy and Civil Liberties Oversight Board found the program was ineffective and likely exceeded current legal authority. Senator Leahy, who held extensive public hearings, has stated "This program is not effective. It has to end." EPIC, supported by dozens of legal scholars and former members of the Church Committee, petitioned the US Supreme Court in July 2013 to end the "215" program. For more information, see In re EPIC and EPIC: NSA Verizon Phone Record Monitoring.
  • In FOIA Lawsuit, EPIC Obtains Secret Reports on Data Collection » (Mar. 3, 2014)
    In a Freedom of Information Act lawsuit, EPIC has obtained reports that detail the number of times the Surveillance Court authorized the use of techniques that gather the telephone numbers and metadata of phone customers and Internet users. The previously secret reports obtained by EPIC cover the period between 2000 and 2013. The reports reveal a dramatic increase in the use of these techniques in 2004 and then a significant reduction in 2008, likely the consequence of a shift to other investigative techniques. The documents show that nearly all applications to the Surveillance Court were approved without modifications. In 2013, EPIC petitioned the Supreme Court to end the bulk telephone record collection program. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information see: EPIC v. Department of Justice - Pen Register Reports, EPIC: Foreign Intelligence Surveillance Court Orders 1979-2012, and In re EPIC.
  • Oversight Board Calls for End of NSA Telephone Records Program » (Jan. 23, 2014)
    Today the Privacy and Civil Liberties Oversight Board called for the end of the section 215 program that allows the NSA to collect the telephone records of all Americans. In a comprehensive report, the Oversight Board unanimously found that "the NSA's Section 215 program has not proven useful in identifying unknown terrorists or terrorist plots" and that "telephone calling records, when collected in bulk and subjected to powerful analytic tools, can reveal highly sensitive personal information." A majority of the board also concluded that Section 215 did not permit the routine collection of all telephone records on all Americans. The report set out 12 recommendations discussing additional privacy safeguards, greater transparency, and improvements to the Foreign Intelligence Surveillance Court. The members of the Oversight Board unanimously supported almost all of the recommendations. EPIC urged the Board last year at a public workshop to (1) find that section 215 does not permit the collection of all telephone records by the NSA; (2) improve reporting of FISA activities; (3) establish new safeguards for transparency and accountability; and (4) reconsider the Constitutional basis of metadata collection in light of the scope of the government's activities and recent Supreme Court opinions. EPIC had earlier petitioned the Supreme Court to find the 215 program unlawful. Former members of the Church Committee and dozens of legal scholars supported the EPIC petition. For more information, see EPIC: In re EPIC - NSA Telephone Record Surveillance.
  • Review Group to Senate: NSA Program Has Not Prevented Threats » (Jan. 15, 2014)
    Members of the President's Review Group presented their recommendations for NSA reform a Senate Judiciary Committee hearing. EPIC participated in the work of the Review Group. The export panel set out 46 recommendations on a range of issues from reforming intelligence surveillance directed at United States persons to promoting prosperity, security, and openness in the networked world. The Members stated the the NSA's bulk collection of metadata had not prevented threats against the United States and recommend that the it be ended. Acknowledging privacy concerns, former CIA Deputy Director Michael Morrell also stated that "there is quite a bit of content in metadata." Last year, EPIC filed a petition in the Supreme Court challenging the legality of the NSA's telephone record collection program. Legal scholars and former members of the Church Committee supported the EPIC petition. The Supreme Court dismissed the petition without ruling on the merits. For more information, see In re EPIC.
    "there is quite a bit of content in metadata" - Morrell, former CIA Deputy Director
  • NY Judge Rules NSA Program Legal, Split Emerges Among Courts » (Dec. 30, 2013)
    A federal judge in New York has ruled that the NSA's telephone metadata program is legal. The ruling comes less than two weeks after a federal judge in Washington, DC issued an injunction against the telephone record collection program—calling it an "unreasonable search under the Fourth Amendment." The opinions create a split amongst the district courts as to the legality of the NSA's program. Both opinions are expected to be appealed. The President's Review Group recently released its report recommending the end of the NSA's bulk collection of telephony metadata. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the program, shortly after the disclosure earlier this summer. For more information, see In re EPIC and EPIC: FISC Verizon Order.
  • Expert Panel Calls for End of NSA Bulk Data Collection » (Dec. 19, 2013)
    The President's Review Group on Intelligence and Communications Technologies has concluded that the NSA’s collection of bulk telephone records should end. In a sweeping report "Liberty and Security in a Changing World," the review panel set out 46 recommendations, which would limit NSA surveillance, expand judicial oversight, create new transparency requirements, update federal privacy laws, and create a new privacy agency. Other recommendations include the application of the Privacy Act of 1974 to both U.S. and non-U.S. persons, support for strong encryption techniques, and the cessation of U.S. practice of stockpiling software vulnerabilities known as "zero day" exploits. Earlier this year, EPIC met with the review group and submitted extensive comments to the panel, specifically urging the end of the bulk record collection program. EPIC had earlier petitioned the Supreme Court to find the program unlawful. For more information, see EPIC: In re EPIC - NSA Telephone Record Surveillance.
  • Federal Judge Enjoins Telephone Metadata Program, NSA Likely Violated Fourth Amendment » (Dec. 16, 2013)
    A federal judge today issued an injunction against the NSA telephone record collection program. Judge Leon ruled that the plaintiffs "have a substantial likelihood of showing that their privacy interest outweigh the Governments interest in collecting and analyzing bulk telephony metadata and therefore the NSA's Bulk Metadata program is indeed an unreasonable search under the Fourth Amendment." Judge Leon also stressed that "While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution." This is the first court opinion issued on the controversial surveillance program. EPIC filed a Petition in the U.S. Supreme Court challenging the legality of the the program, shortly after the disclosure earlier this summer. The decision of the district court will be stayed pending an appeal by the government to the DC Circuit Court of Appeals. For more information, see In re EPIC and EPIC: FISC Verizon Order.
  • Presidential Task Force to Recommend Changes at NSA » (Dec. 13, 2013)
    The Review Group on Intelligence and Communications Technologies, established to recommend surveillance reforms, will send a final report to the President this Sunday. According to one news article, the task force will recommend putting a civilian leader in charge of NSA, separating out the code-breaking "Information Assurance Directorate," and splitting the U.S. Cyber Command off into a separate military unit. The Review Group will also recommend new limits on the NSA’s ability to search telephone call records, proposing that telephone records be stored with a third party rather than the NSA. The group will also recommend safeguards for the data of European citizens, and restrictions on the use of National Security Letters. Earlier this year, EPIC filed a petition with the U.S. Supreme Court, supported by legal scholars and former members of the Church Committee, arguing that the NSA bulk collection program was unlawful. For more information, see EPIC: Foreign Intelligence Surveillance Act, EPIC: Foreign Intelligence Surveillance Act Reform, and EPIC: In re EPIC.
  • EPIC Urges FCC to Investigate AT&T’s Practice of Selling Consumer Phone Records » (Nov. 18, 2013)
    In a letter to Federal Communications Commission Chairman Tom Wheeler, EPIC urged the FCC to determine whether AT&T violated the Communications Act when it sold private consumer call detail information to the Drug Enforcement Administration and Central Intelligence Agency. EPIC's letter follows an earlier letter where EPIC asked the FCC to resolve whether Verizon violated the Communications Act when it released consumer call detail information to the National Security Agency. EPIC's letter also informed the Commission that the National Association of Regulatory Utility Commissioners has issued a draft resolution underscoring the crucial role of the FCC in protecting consumer information. For more information, see EPIC: In re EPIC and EPIC: Foreign Intelligence Surveillance Act.
  • Privacy Groups to FTC: Investigate Role of US Firms in NSA Surveillance » (Nov. 13, 2013)
    Consumer privacy organizations in the US have asked the Federal Trade Commission to determine whether US companies turned over private customer data to the National Security Agency. "We urge you to open an investigation to determine whether any failure by these companies to comply with the Commission's orders may have contributed to the improper disclosure of customer data," the groups wrote. The organizations, which have brought many privacy complaints to the FTC, stated that the disclosure of user data "directly implicates the jurisdiction of the Federal Trade Commission." According to the organizations, "it is inconceivable that when faced with the most significant breach of consumer data in U.S. history, the Commission could ignore the consequences for consumer privacy." EPIC previously wrote to the Federal Communications Commission regarding the unlawful provision of call detail records to the NSA. The Supreme Court is scheduled to consider EPIC's challenge to the NSA telephone record collection program at conference this week. For more information, see In re EPIC.
  • Supreme Court to Consider EPIC Challenge to NSA Program This Week » (Nov. 12, 2013)
    The Supreme Court is scheduled to consider EPIC's challenge to the NSA telephone record collection program at conference this week. EPIC has asked the Court to overturn an order of the Foreign Intelligence Surveillance Court that compelled Verizon to produce all of the telephone records of all of its customers to the NSA. EPIC said that this order clearly exceeded the authority of the surveillance court. The EPIC Petition was distributed to the Justices last week along with briefs by former Church committee members and prominent scholars in information law, federal jurisdiction, and constitutional law, who all urged the Supreme Court to grant the EPIC petition. For more information, see In re EPIC.

Background of Smith v. Obama

On June 5, 2013, the Guardian first reported on an order from the Foreign Intelligence Surveillance Court (FISC), requiring Verizon to produce all domestic telephone call detail records to the National Security Agency ("NSA") on an ongoing basis. The FISA had ordered Verizon to produce these millions of records of US citizens to the NSA without any particularized suspicion of wrongdoing. Specifically, the FISA order required that Verizon turn over “all call detail records or 'telephony metadata' created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.” Once revealed, the government confirmed the existence of the Verizon order and of the telephone metadata program.

Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 following the discovery by the Church Committee of decades of domestic surveillance by the Intelligence Community. The Act prohibited domestic surveillance except by approval from a newly created secret court, the Foreign Intelligence Surveillance Court (FISC). Under the FISA, the FISC would only grant orders if the government could show probable cause to believe that the targets were foreign powers or agents of a foreign power.

However, Congress modified the FISA in 2001 with the USA PATRIOT and in 2006 with the Patriot Act Reauthorization. Specifically, Congress authorized the FBI in Section 215 to apply for FISC orders compelling businesses to produce "tangible things" relevant to an authorized investigation to protect against international terrorism. Section 215 provided that businesses who received these orders could challenge them in the FISC Court. We now know that the FISC has subsequently approved 215 orders for more than 7 years that require major telephone companies, like Verizon, to provide all telephone call detail records to the NSA.

Plaintiff in Smith sued to enjoin the NSA from collecting her telephone records, claiming that the 215 program violates her Fourth Amendment right to be free from unreasonable searches and seizures. Plaintiffs brought the case as customers of Verizon Wireless, alleging that the government warrantlessly collected their telephone records, stored them, and queried them for more than 5 years. The district court dismissed plaintiffs claim, finding that they had no reasonable expectation of privacy in their call detail records under the Supreme Court's decision in Smith v. Maryland.

District Court Opinion

In Smith v Obama, the lower court held that the NSA Metadata collection does not violate the Fourth Amendment because the Supreme Court held in Smith v. Maryland that individuals have no reasonable expectation of privacy in their cell phone records held by phone companies.  The court acknowledged that the information collected by the NSA went “beyond” the information collected in Smith v. Maryland (several days’ worth of numbers dialed by a single person, obtained with a pen register). To support its holding, the district court cited three Ninth Circuit cases involving records held by third parties, all of which involved the records of one to three individuals collected by law enforcement as part of an investigation.

Plaintiff Smith has appealed the lower court ruling in the U.S. Court of Appeals for the Ninth Circuit.

EPIC's Interest in Smith v. Obama

EPIC has continually pressed the NSA and the President to end the collection of Americans' telephone call records because the program is unlawful. EPIC filed a Petition for a Writ of Mandamus in the U.S. Supreme Court, challenging the same NSA metadata collection programs. EPIC continues to advocate for the end of the bulk collection program, which the President has promised would end.

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Communications Law and Policy

Communications Law and Policy
Jerry Kang and Alan Butler