Swire Endorsed Position That NSA Telephony Metadata Program is Illegal

I mentioned in my post below that Peter Swire is like to be the civil libertarian on the 4-person Obama committee to review the NSA’s surveillance practices. Along those lines, I noticed that Swire co-signed this amicus brief filed a few weeks ago that argued that the NSA’s telephony metadata program is illegal under FISA’s Section 215. From the brief:

THE NSA’S TELEPHONY METADATA PROGRAM IS INCONSISTENT WITH FISA

The NSA’s telephony metadata program, conducted under 50 U.S.C. §1861, contradicts FISA’s purpose and design. . . .

The government argues that the NSA’s telephony metadata program is consistent with the language of 50 U.S.C. §1861 in that all telephone calls in the United States, including those of a wholly local nature, are “relevant” to foreign intelligence investigations.

This interpretation directly contradicts Congress’ intent in introducing §215. At the introduction of the measure Senator Arlen Specter explained that the purpose for the language was to create an incentive for the government to use the authority only when it could demonstrate a connection to a particular suspected terrorist or spy. 151 Cong. Rec., 13,441 (2005). . . .

The government’s interpretation of “relevant”, moreover, contradicts the purpose of FISA. As discussed above, Congress designed the statute to be used in specific cases of foreign intelligence In addition, Congress empowered the FISC to consider each instance of placing an electronic wiretap. The telephony program delegates such oversight to the executive, leaving all further inquiries of the databases to the agency involved. Thus, once the NSA collects all telephony metadata, it is the NSA (and not the FISC) that decides which queries to use, and which individuals to target within the database. This means that the FISC is not performing its most basic function: protecting U.S. persons from undue incursions into their privacy.