The U.S. Department of Justice has filed to the Foreign Intelligence Surveillance Court for permission to continue the bulk collection of call records for another six months, as the new USA Freedom Act allows for this transition period.
The filing, made public Monday, was submitted to the court last Tuesday, the same day President Barack Obama approved as law the USA Freedom Act, which puts curbs on the bulk collection of domestic telephone records by the National Security Agency.
The new legislation was passed by the Senate following the expiry at midnight of May 31 of the authorization of the bulk collection under section 215 of the Patriot Act. It leaves the phone records database in the hands of the telecommunications operators, while allowing a targeted search of the data by the National Security Agency for investigations.
While some prohibitions take effect immediately upon enactment, the ban on bulk collection of call records allows for a 180-day orderly transition of the program, DOJ said in its filing. The USA Freedom Act states that during this period the authority of the government to obtain a bulk collection order under the Foreign Intelligence Surveillance Act will continue.
“Congress recognized the need for an orderly transition period that preserves an important foreign intelligence collection capability until the Government may effectively avail itself of the new provisions for a targeted production,” according to the filing.
The government is, however, under pressure to turn off its bulk collection in the wake of a ruling against the program in May by an appeals court.
The U.S. Court of Appeals for the Second Circuit had ruled in an appeal filed by the American Civil Liberties Union and others that a district court in New York had erred in ruling that Section 215 authorizes the telephone metadata collection program. The telephone metadata program exceeds the scope of what Congress has authorized and therefore violates Section 215, Judge Gerard Lynch wrote on behalf of the three-judge panel.
The appeals court vacated the earlier order of the U.S. District Court for the Southern District of New York and remanded the case to it for further proceedings in line with the new opinion.
The DOJ said in its filing that it was evaluating its litigation options in view of the decision by the Second Circuit court, but added that rulings of the appeals court do “not constitute controlling precedent” for the FISC.
On Friday, advocacy group FreedomWorks and Ken Cuccinelli, a former Virginia attorney general, asked the FISC to deny the government’s request to reinstitute or continue the metadata collection for another six months, particularly in the light of the decision of the Second Circuit.