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Secret Spy Court Won’t Reconsider Phone Data Collection

Dec. 19 (Bloomberg) -- The U.S. Foreign Intelligence Surveillance Court rejected a request by a civil liberties watchdog group to re-examine an order authorizing the U.S. to collect call data from phone companies.

The Center for National Security Studies “has no standing to move for reconsideration of a decision,” Judge Mary McLaughlin wrote yesterday. McLaughlin also rejected the Washington-based center’s request that the government declassify documents explaining arguments for the legality of the data program, known as bulk telephony metadata collection.

The ruling comes amid a growing debate over privacy linked to the Obama administration’s data gathering program, overseen by the National Security Agency. A federal judge in Washington on Dec. 16 said the NSA’s telephone data surveillance program probably violates constitutional privacy rights, a ruling that may lay the foundation for the U.S. Supreme Court to review the matter.

McLaughlin’s ruling concerns the periodic reauthorization of bulk telephone data collection required under the Patriot Act, the federal law enacted after the Sept. 11, 2001, terrorist attacks.

The Center for National Security Studies on Oct. 17 asked the court either to reconsider its decision renewing that authority six days earlier or to set up a process to allow for debate on the next reauthorization.

Kate Martin, director of the center, didn’t immediately respond to a phone message seeking comment on McLaughlin’s ruling.

Legal Justification

McLaughlin did give the center permission to file arguments to challenge the legal justification for the information gathering.

The existence of the NSA program, involving the collection of phone data on millions of Americans, was disclosed this year in leaks by the former NSA contractor Edward Snowden.

A White House advisory panel yesterday recommended limits on the broad collection of information.

Among the changes proposed was moving the storage of metadata, including numbers used to make and receive calls and their durations, from NSA to telecom companies or private third parties.

Court Order

The government would then need a court order to access the records, according to the report of the Review Group on Intelligence and Communications Technology.

The panel, established by President Barack Obama in August, is made up of Richard Clarke, a former U.S. government cybersecurity adviser; Michael Morell, a former deputy CIA director; Geoffrey Stone, a University of Chicago law professor; Cass Sunstein, a Harvard Law School professor who once worked in the administration; and Peter Swire, who served on Obama’s National Economic Council.

The panel’s report came two days after U.S. District Judge Richard Leon ruled that the NSA’s phone records collection program probably is illegal.

Technology has outstripped a 34-year-old Supreme Court decision that Americans don’t have a Fourth Amendment privacy right regarding the phone numbers they call, Leon said.

Patriot Act

The surveillance court has relied on the decision in consistently ruling that the NSA program complies with the Patriot Act.

Leon said the widespread use and versatility of today’s smartphones has dramatically altered the amount of information available and “what that information can tell the government about peoples’ lives.”

Two days ago, 15 technology company executives, including Yahoo! Inc. Chief Executive Officer Marissa Mayer, Apple Inc. CEO Tim Cook and Google Inc. Chairman Eric Schmidt, met at the White House to urge Obama to curb NSA surveillance programs.

Technology companies are facing the loss of billions of dollars in overseas business, tighter regulations and erosion of consumer trust resulting from revelations about NSA spying.

Five companies participating in the White House meeting, Yahoo, Google, Facebook Inc., Microsoft Corp. and LinkedIn Corp., have lawsuits in the surveillance court seeking to be allowed to disclose more information about the government’s national security requests for data.

The bulk data case is In Re: Application of the Federal Bureau of Investigation for an Order Requiring the Production of Tangible Things, 13-158, U.S. Foreign Intelligence Surveillance Court (Washington).

To contact the reporter on this story: Andrew Zajac in Washington at azajac@bloomberg.net

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