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Intelligence chief declassifies FISA court approval for collection of phone data

Jim Watson / AFP - Getty Images file

While National Intelligence Director James Clapper's request for FISA approval was declassified, the court's actual ruling wasn't.

The top U.S. spy opened the door a sliver Friday on the mass collection of telephone records, acknowledging that national intelligence agencies had sought and been granted permission to vacuum up Americans' calling data for three more months.

In a statement released quietly on Friday (.pdf), the Office of the Director of National Intelligence said Director James Clapper had decided to declassify and disclose that the government made the request to the hush-hush Foreign Intelligence Surveillance Court, which approved it earlier in the day.


U.S. District Judge William Pauley upheld the constitutionality of the National Security Agency's bulk collection of millions of Americans' telephone records — what's called "telephony metadata" — in a controversial ruling in New York last week. The American Civil Liberties Union, which brought the suit challenging the program, said Thursday that it would appeal Pauley's ruling.

Pauley's ruling came just 11 days after U.S. District Judge Richard Leon said the program appeared to be unconstitutional in a ruling in Washington, D.C., that sided with two Americans who wanted their data removed from NSA records.

It's now up to appeals courts and, most likely, the U.S. Supreme Court to sort through the contradictory findings.

The intelligence statement said Friday that Clapper was officially disclosing the FISA process "in order to provide the public a more thorough and balanced understanding of the program," which has polarized Americans over how deeply the U.S. government should dig into their privacy to keep them safe.

Documents released by former NSA contractor Edward Snowden revealed that the agency has been scarfing up phone and Internet metadata — information about where and when calls are made, not the content of those calls — without a warrant since two months after the terrorist attacks of Sept. 11, 2001. 


The FISA court reviews the program every three months, meaning Friday's seal of approval is the 36th it has issued since May 2006, when the administration of President George W. Bush successfully persuaded the secret court that the mass collection of data was legal under the USA Patriot Act.

Friday's statement also represented a sharp reversal from March, when Clapper flatly denied in testimony to the Senate Intelligence Committee that the NSA was doing any such thing. 

After the Snowden documents emerged, however, the intelligence community came under vigorous attack from civil liberties advocates, and Clapper issued a public apology in July for having "misstated" the program's reach in his testimony.

"The Intelligence Community continues to be open to modifications to this program that would provide additional privacy and civil liberty protections while still maintaining its operational benefits," Friday's statement said.

While Clapper disclosed that the FISA court had issued the approval, the court's ruling itself wasn't made public.

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