A federal judge with the top-secret surveillance court on Monday breezily reinstated the NSA bulk domestic surveillance program that was temporarily halted a month ago, allowing the agency to go back to hoovering up telephone metadata for five months while it unwinds the program for good.
“Plus ça change, plus c’est la même chose,” Foreign Intelligence Surveillance Court Judge Michael W. Mosman wrote in his ruling, using the French phrase that means “the more things change, the more they stay the same” to summarize the legislative and judicial back-and-forth that led to the temporary reinstatement.
By failing to agree on how to reauthorize certain sections of the Patriot Act, the Senate on May 31 engaged in a rare act of rebellion against the surveillance state, forcing the National Security Agency to shutter the program that had collected telephone metadata — information about who called who, and for how long — for more than a decade, until NSA whistleblower Edward Snowden disclosed its existence in 2013.
Two days later, however, the Senate passed a milquetoast surveillance reform bill that ordered the bulk collection program phased out by November 29, to be replaced by one in which the NSA has to request specific records, and explain why.
That led to Monday’s paradoxical decision to revive bulk collection so it can die again, theoretically in a more orderly fashion.
In his decision, Mosman also flippantly dismissed a major appellate court ruling in May that the program was illegal. The Second Circuit Court of Appeals ruled that Section 215 of the Patriot Act, which was the government’s legal cover for bulk collection, didn’t authorize any such thing. The decision hinged on the common-sense conclusion that when the Patriot Act gave the government power to obtain phone records “relevant to an authorized investigation,” that wasn’t power to collect all phone records everywhere.
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