Yes. And it might well be an extension of those policies.
Okay, but ... seriously, how is this not a violation of the Fourth Amendment?
So the Fourth Amendment generally requires that the government obtain a warrant when it's seeking private information about individual citizens. And the warrant, in turn, should be granted based on probable cause. There's a slight exception to that broad approach, though. Many Supreme Court rulings have held that you don't have a reasonable expectation of privacy when it comes, specifically, to information you share with a third party.
And the courts have now applied that standard to other areas. Which generally makes sense, except for one substantial tension. As David Cole, a Georgetown law professor who focuses on national security and constitutional law, told me: "Basically, everything you do now shares information with a third party." The numbers you dial on the phone, the amount of time you spend on the phone, the location from which you make a phone call -- all of that, because of how our technologies and businesses are structured, is de facto shared with the third party that is your phone company.
And the rub, as Cole explains it, is that the Fourth Amendment doesn't limit the government's ability to obtain any of that third-party information. Bank records, credit card records, Internet searches: none of that, on its own, has protection under the Constitution.
How is it that a FISA court -- a court established under the auspices of the "Foreign Intelligence Surveillance Act" -- is authorizing the government to monitor metadata from domestic calls?
This is where things get dicier. FISA, which was adopted in 1978 and has been amended several times since then, permits the U.S. government to obtain records that are related to a target of a foreign intelligence investigation. While "foreign" can be defined fairly broadly, it's notable -- and legally questionable -- that the FISA court order, in this case, includes purely domestic surveillance.
Furthermore, FISA, as it's been widely understood, has allowed governments to gather third-party information in response to investigations into individuals' actions. It's unclear in this case how that translates, legally, to the kind of collective surveillance the NSA seems to be engaged in.
I keep reading about the PATRIOT Act. How does that fit into all this?
A section of the PATRIOT Act -- section 215, to be precise -- is what's ultimately guiding the legal affordances here, at least as the Administration is interpreting them. (You may know the section as the "library records" provision, named that way because of the breadth of personal information that can be investigated under its auspices.) Section 215, following the terror attacks of September 11, expanded the powers of the Foreign Intelligence Surveillance Court (the court that, in this case, issued the Verizon order). It established a process, through that court, for compelling businesses to turn over records that may be relevant to the gathering of foreign intelligence or the prevention of international terrorism.