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In a heavily redacted opinion Colleen Kollar-Kotelly, the former presiding judge of the Fisa court, placed legal weight on the methods of surveillance employed by the NSA , which had never before collected the internet data of “an enormous volume of communications”.
The methods, known as pen registers and trap-and-trace devices, record the incoming and outgoing routing information of communications – traditionally phone calls made between individual users. Kollar-Kotelly ruled that acquiring the metadata, and not the content, of email and internet usage in bulk was harmonious with the “purpose” of Congress and prior court rulings – even though no surveillance statute ever authorized it and top officials at the justice department and the FBI threatened to resign in 2004 over what they considered its dubious legality.
The legal status of the internet metadata program was highly controversial. In March 2004 several justice department and FBI individuals threatened to resign – including James Comey, George W Bush’s deputy attorney general and now Barack Obama’s FBI director – if the Bush White House and NSA persisted in authorizing the program over their objections that the internet metadata bulk collection was insufficiently legally grounded.
A senior intelligence official, Shawn Turner of the Office of the Director of National Intelligence, told the Guardian in July that the Obama administration shut down the bulk internet metadata collection program in 2011 “for operational and resource reasons” and it had not been restarted.
The release comes at the beginning of an important week in Washington for the NSA’s bulk phone records collection. On Thursday the NSA deputy director is scheduled to testify before a Senate panel that is considering a bill to strip the surveillance agency of its power to collect phone data from Americans without individual warrants. Legislators are also discussing attaching surveillance restrictions to an annual defence authorization bill that the Senate is taking up this week.
Interesting too is that the original FISA decision/opinion grants the authority not on privacy grounds but technological ones. That the system proposed cannot be specific - it has to collect all or nothing.
Since when does a 'technology' have standing in court?