Behold, BR 15-24, the Longest-Serving Phone Dragnet Order Ever

By my calculation today marks the 91st day of the life of phone dragnet order BR 15-24, making it the longest running dragnet order ever. Though the order offered no explanation, FISC judge James Boasberg approved a 95-day expiration for this order back on February 26 so the dragnet order expiration would coincide with PATRIOT Act’s sunset.

It probably seemed wise at the time, but it definitely exacerbates the impact of Mitch McConnell’s miscalculation last week, as it means there’s is no grace period after the current order expires.

The 90-day renewals appear to arise out of both the Stellar Wind practice and the FISA Pen Register practice. Under the former, the Bush Administration reviewed the dragnet every 45 days to make sure it was still necessary and give it the appearance of oversight. (The renewal dates appear on this timeline.) When FISC approved the use of the Pen Register statute to collect the Internet dragnet, it adhered to that statute’s renewal process, which requires 90-day renewals. I assume the phone dragnet adopted the same, even though Section 215 has no renewal requirement, because the phone dragnet collected even more data than the Internet dragnet did.

So already, we’re a day longer than the spirit of the law should permit, four days before Sunday’s scheduled resolution (or lack thereof) of the current impasse.

Given Charlie Savage’s account, it appears the Administration did not — as ordered by Boasberg — brief the FISC on the impact of the 2nd Circuit decision if it would change the program. Rather, they’re just hiding out, hoping they don’t need to raise this or any other issue with regards to the dragnet with the FISC.

The Foreign Intelligence Surveillance Court had given the government a deadline of last Friday to file a new application to extend the bulk phone records program for 90 days. Given the disarray in the Senate and the looming deadline, the Justice Department did not file, the official said, speaking on condition of anonymity to discuss intelligence-related matters.

[snip]

The administration is holding to its decision not to invoke the grandfather clause to keep collecting bulk phone records past next Monday, the official said. But the government has not ruled out invoking such a clause for using the business records provision — as well as the other two powers that are expiring — to gather specific records for more routine investigations.

“We will not use the grandfather clause in the Patriot Act to continue the bulk metadata collection program; it would not be tenable for us to do so,” the senior official said.

“Thus, because of the pending sunset of the current authority, we have not filed an application with the FISA court to continue collection,” the official said, referring to the Foreign Intelligence Surveillance Act court, also known as FISC.

The official added, “We will consider, in light of our national security needs and the status of our authorities, whether to make an appropriate filing with the FISC about accessing previously collected metadata.”

[snip]

The administration is hoping to avoid any need to go to the court for permission to query already-acquired bulk phone data, which would raise additional legal complications.

But one plan being floated — Dianne Feinstein’s non-compromise compromise — would simply permit the FISC to extend the current order until a year after whenever her bill might be passed into law (which couldn’t be Sunday night), as if nothing had ever happened.

CONTINUED APPLICABILITY.—Notwithstanding any other provision of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) or this Act or any amendment made by this Act, the order entered by the court established under section 103(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803(a)) on February 26, 2015, in Docket No. BR 15–24, may be extended by order of that court until the effective date established in subsection (a) [that is, one year after the passage of this bill]

In other words, Feinstein proposes to take a dragnet collecting the phone records of all Americans, and extend it for an entire year, when even a Pen Register targeting an individual would need to be formally renewed.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

12 replies
  1. wallace says:

    quote”The Foreign Intelligence Surveillance Court had given the government a deadline of last Friday to file a new application to extend the bulk phone records program for 90 days. Given the disarray in the Senate and the looming deadline, the Justice Department did not file, the official said, speaking on condition of anonymity to discuss intelligence-related matters.”unquote

    FUCK.. quote” ..the official said, speaking on condition of anonymity to discuss intelligence-related matters.
    wait..wait..Let me get this fucking STRAIGHT..when does an official, speaking “on condition of anonymity ” mean anything. Fuck him or her. And fuck the journalists who have allowed “speaking on condition of anonymity” to become the dejour evidence of journalistic credence. In essence..the thought that journalists can bolster their reporting by simply saying..”my source is a ghost”..is fucking bullshit. PERIOD Either we can follow the trail to the source and PROVE they said something..or the journalistic trail of evidence is bullshit.

  2. wallace says:

    Meanwhile.. thanks emptywheel. YOU are the only person on this planet who truly is documenting the attempt of the authoritarian collectivists of our government to fully empliment the beginning stages of subjugating the uninformed to fully comply with the 16th Amendment. You see..that’s where it’s all coming from. Money. YOUR money.

  3. wallace says:

    meanwhile..quote”A federal appeals court recently ruled that the phone program was illegal because Congress did not intend the statute to permit such sweeping collections of information.

    Since then, the government has not asked the surveillance court to issue any rulings — like extending the program, or querying a new suspicious number — avoiding, for now, a confrontation over the conflicting legal interpretations.”unquote

    right. Our government will spend as much as at takes to prosecute you once you cross a legal imperialism line in the sand. And if that don’t work..they will kill you. Period

  4. A Reader says:

    @wallace: Freedom Act wants all data to be collected and held by third party providers. Recent court rulings said third party providers no longer require warrants to collect data. A+B=XYZ

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