"The National Security Agency's ability to gather phone data on millions of Americans hinges on a secret court ruling that redefined a single word: 'relevant.'
"This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.
"'Relevant' has long been a broad standard, but the way the court is interpreting it, to mean, in effect, "everything," is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department's primary authority on federal criminal surveillance law.
"Under the Patriot Act, the Federal Bureau of Investigation can require businesses to hand over 'tangible things,' including 'records,' as long as the FBI shows it is reasonable to believe the things are 'relevant to an authorized investigation' into international terrorism or foreign intelligence activities.
"The history of the word 'relevant' is key to understanding that passage. The Supreme Court in 1991 said things are "relevant" if there is a 'reasonable possibility' that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions—innocent people's information—wouldn't be pertinent.
"But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. The court's rulings on such matters are classified and almost impossible to challenge because of the secret nature of the proceedings. According to the court, the special nature of national-security and terrorism-prevention cases means 'relevant' can have a broader meaning for those investigations, say people familiar with the rulings.
"Former Sen. Jon Kyl spoke on the floor of the Senate in favor of the 'relevance' standard. 'We all know the term "relevance." It is a term that every court uses,' he said in 2006. 'The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation,' he said.
"But a few people cautioned that 'relevant' could be defined to the point of irrelevance. 'Relevance is a very broad standard that could arguably justify the collection of all kinds of information about law-abiding Americans,' former Sen. Russ Feingold said on the Senate floor in February 2006. He argued for stricter wording, and failed."
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