Cecilia Coelho Romero: Blog Post

Cecilia Coelho Romero

Information Privacy Law

Professor Ira Rubinstein

April 12, 2017

The end of unrestrained bulk metadata collection after Snowden’s revelations

The USA Patriot Act enacted in response to the 9/11 terrorist attacks allowed through its Section 215 the bulk metadata collection, which generated much debate in American society about the proper balance between national security and civil liberties. Title 50 U.S. Code § 1861, also known as Section 215 of the USA Patriot Act, granted access by U.S. surveillance agencies to individuals’ records (namely books, papers, documents, tax returns, among others) under a relativity low scrutiny, for purposes of international terrorism investigations.

Although the Title included language providing that investigations must be conducted under the guidelines approved by the Attorney General, and required that such examinations not be conducted solely upon the basis of activities protected by the first amendment — when targeting U.S. citizens — its business records provision was broadly interpreted by the National Security Agency (NSA) to include the vast collection of phone records of Americans who were not necessarily under investigation. According to Edward Snowden’s revelation, on May 24, 2006, the Foreign Intelligence Surveillance Court (FISC) approved an FBI application for an order, pursuant to 50 U.S.C. § 1861, requiring Verizon to turn over all telephony metadata to the NSA. The court later approved the same measure for all major US telecommunications service providers and such collection of data was extended by FISC, more than thirty times, in the course of seven years. Almost all of the information obtained related to the activities of persons who were not the subjects of any investigation[1].

This bulk-collection program remained secret until mid-2013, and came into light by a combination of leaks by Edward Snowden and the Freedom of Information Act litigation, launched by the Electronic Frontier Foundation. As a result, more than twenty bills have been written in attempt to restore civil liberties, and in June 2015 it was enacted the USA Freedom Act. The Act imposes some new limits on the bulk collection of telecommunication metadata on U.S. citizens, including the prohibition for a tangible thing production order unless a specific selection term is used as the basis for the production, which must be associated with a foreign power or an agent of a foreign power engaged in international terrorism or activities in preparation for such terrorism2. In short, Americans have not blindly accepted the provisions of the USA Patriot Act, and through local and civil liberties organizations, have vigorously stated their opinions against the use of external threat and fear to undercut individual’s freedom.

References:

[1]ARTICLE: BULK METADATA COLLECTION: STATUTORY AND CONSTITUTIONAL CONSIDERATIONS, 37 Harv. J.L. & Pub. Pol’y 757, 767

2 H.R.2048 – USA FREEDOM Act of 2015 – Available at: https://www.congress.gov/bill/114th-congress/house-bill/2048

* LL.M Candidate at NYU School of Law

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