DOJ memo asserts that all US phone calls are ‘relevant’ to terrorism

The Justice Department on Friday released its legal rationale for why all U.S. phone calls are “relevant” to terrorism investigations.

The administration released the memo as part of President Obama’s push to enhance public confidence in the National Security Agency’s controversial surveillance programs.

Section 215 of the Patriot Act allows the government to collect business records if they are “relevant” to a terrorism investigation. The NSA has acknowledged that it has been using the provision to force phone companies to turn over records on all U.S. phone calls.

{mosads}The records include phone numbers, call times and call durations, but not the contents of the conversations.

Numerous lawmakers, including Rep. Jim Sensenbrenner (R-Wis.), the author of the Patriot Act, have accused the NSA of abusing its power under Section 215.

“Seizing phone records of millions of innocent people is excessive and un-American,” Sensenbrenner said in a statement after the program’s existence was first leaked by former government contractor Edward Snowden.

In its memo, the Justice Department argues that relevance has a “particularized legal meaning” in the context of producing documents.

“It is well-settled in the context of other forms of legal process for the production of documents that a document is ‘relevant’ to a particular subject matter not only where it directly bears on that subject matter, but also where it is reasonable to believe that it could lead to other information that directly bears on that subject matter,” the Justice Department states. 

The government argues that the data collection is legal because the phone record database will likely produce information that is helpful for terrorism investigations. 

The Justice Department denies that the data collection violates the Fourth Amendment, arguing that people do not have any reasonable expectation of privacy in the data about their phone calls that they share with phone companies. Additionally, any privacy concerns are outweighed by the public interest in thwarting terrorist attacks, the department writes. 

The memo explains that NSA officials are only allowed to query the database of phone records if they have a “reasonable, articulable suspicion” that a number is connected to terrorism.

The memo acknowledges that the government analyzes information on phone numbers as many as three “hops” away from a target. The first “hop” is someone who has communicated with the target, the second “hop” is someone who communicated with the first “hop,” and the third “hop” communicated with the second “hop.”

The memo does not reveal whether the government is collecting information beyond phone records in bulk under Section 215. But it does state that not all business records— “such as medical records or library or bookstore records” — can be legally collected in bulk.

The government only uses the authority if it is useful to analyze “invisible connections” in bulk amounts of data to identify terrorists, according to the Justice Department.