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James Boyd
Center for Applied Cybersecurity Research

Ken Turchi
IU Maurer School of Law

Last modified: Friday, August 9, 2013

Professors call data collection under Verizon order illegal, dangerous in Supreme Court brief

Aug. 9, 2013

BLOOMINGTON, Ind. -- Leading professors of privacy and surveillance law today urged the U.S. Supreme Court to overturn the secret order of the Foreign Intelligence Surveillance Court authorizing the NSA to collect "all call detail records or 'telephony metadata' created by Verizon," including calls wholly within the U.S. and calls between the U.S. and abroad.

The order has been in place since May 2006 and has been reauthorized by the court approximately every 90 days since, most recently on July 19, 2013. The order first came to public attention when The Guardian published it on June 5, 2013.

In a brief written by Fred H. Cate, from the Indiana University Maurer School of Law, the experts argue that the Verizon order is deeply flawed and poses a serious threat to personal privacy.

"The Verizon Order ... clearly violates the law and presents a significant risk to the personal privacy of millions of U.S. persons," according to the brief. "Such sweeping collection of data about individuals who 'have done nothing to warrant government suspicion ... has the potential to be a 21st-century equivalent of general searches.'"

In particular, the brief takes issues with the Obama administration's interpretation of the federal law under which the order was granted. Under that law (Section 215 of the USA PATRIOT Act), orders can only be granted if the Foreign Intelligence Surveillance Court determines that there are "reasonable grounds" to believe the data are "relevant to an authorized investigation."

The amicus brief argues that that it simply "is not credible" that "the call detail records and telephony metadata concerning the billions of calls by or to millions of customers were 'relevant to an authorized investigation.'"

Administration officials concede as much but argue the National Security Agency is operating within the law by broadly collecting data on Verizon customers first, and then judging relevance later when deciding which data to review. The brief stresses, however, that Section 215 does not allow the NSA to collect the data first and then assess its relevance later.

"The Verizon Order effectively eliminates the relevancy requirement by directing Verizon to disclose all call detail records and telephony metadata, even though the overwhelming majority is, by the government's admission, 'never going to be responsive,'" the brief says.

"Given the scope of records that may be obtained under (Section) 215, the government's rewriting of FISA, which the Verizon Order endorses, grants the government power to gather virtually unlimited data on the daily activities of all U.S. persons. Section 215 cannot be read to authorize such a vast surveillance enterprise."

The brief also argues that the Verizon order violates two other requirements of Section 215.

First, "Given that the DNI and the DOJ have acknowledged that the NSA never uses the vast majority of call detail records and telephony metadata collected under the Verizon Order, it is unclear how the collection could comply with the 'solemn obligation' that the government 'use the least intrusive collection techniques feasible' ... or how the government's conduct respects liberty and privacy and avoids unnecessary intrusions into the lives of law-abiding people," as required by law.

Second, the order violates the prohibition on conducting an investigation "solely upon the basis of activities protected by the First Amendment to the Constitution."

The professors argue, "To generate call detail records and telephony metadata covered by the Verizon Order a U.S. person must do only one thing: place or receive a telephone call on a Verizon network. According to this Court, the First Amendment fully protects communication by telephone."

The amicus brief supports the petition to overturn the Verizon order filed by the Electronic Privacy Information Center on July 8, 2013.

In addition to Cate, who is counsel of record, the amicus brief is signed by David Fidler, also from the Indiana University Maurer School of Law; William C. Banks, Syracuse University College of Law; Danielle Citron, University of Maryland Francis King Carey School of Law; Susan Freiwald, University of San Francisco School of Law; Lawrence M. Friedman, New England Law-Boston; Michael Froomkin, University of Miami School of Law; Ken Gormley, Duquesne University School of Law; Deirdre Mulligan, University of California Berkeley School of Information; Paul Ohm, University of Colorado Law School; Joel R. Reidenberg, Fordham University School of Law; Ira S. Rubinstein, New York University School of Law; Peter Swire, The Ohio State University Moritz College of Law; and Jennifer M. Urban, University of California Berkeley School of Law.

Both the amicus brief and the original EPIC petition are available online.

Cate is a Distinguished Professor and the C. Ben Dutton Professor of Law at the Indiana University Maurer School of Law. He serves as director of the university's Center for Applied Cybersecurity Research and can be reached at 812-855-1161 or