WASHINGTON – The Foreign Intelligence Surveillance Court released a new legal opinion Friday that reauthorized the once-secret National Security Agency program that keeps records of every American’s phone calls. The opinion also sought to plug a hole in a similar ruling made public last month.
In the six-page opinion signed Oct. 11, Judge Mary A. McLaughlin said she was personally approving for the first time the extension of the call log metadata program, which must be approved every 90 days. But she wrote that she endorsed a lengthy legal opinion written by a colleague, Judge Claire V. Eagan, who was the previous judge to approve extending it.
Eagan’s opinion, made public last month, held that the NSA could lawfully collect the bulk data about all Americans’ calls without warrants, in part because of a 1979 case, Smith v. Maryland. In that ruling, the Supreme Court held that call records were not protected by the Fourth Amendment because suspects had exposed that metadata to their phone companies and had no reasonable expectation of privacy.
Eagan’s opinion has been criticized, in part, because she made no mention of a landmark privacy case decided by the Supreme Court in 2012. That case, United States v. Jones, held that it was unconstitutional for the police to use a GPS tracking device to monitor a suspect’s movements without a warrant.
Although the high court decided the case on narrow grounds — citing that the police had to trespass on the suspect’s property when installing the device — five of the nine justices separately called into question whether the 1979 precedent was valid in an era of modern technology. They suggested that the automated long-term collection of data about someone’s location might raise Fourth Amendment issues even though each individual movement is disclosed to other people.
In her new opinion, McLaughlin acknowledged the existence of the 2012 case but explained why she did not think it was relevant. First, she said, that case involved physical location, not communication links. And second, she said, the Supreme Court had decided the case on different grounds and did not fully consider the broader issue.
“The Supreme Court may someday revisit the third-party disclosure principle in the context of 21st-century communications technology, but that day has not arrived,” so the 1979 precedent remains the controlling legal precedent, she wrote.