This article examines the controversy surrounding bulk telephone metadata collection that has ensued since their disclosure in June 2013. The author analyzes the “use of tangible things” provision to acquire telephony metadata, including limitations on this practice, the statutory issues such a practice raises, and the ways in which the Foreign Intelligence Surveillance Court has decided on the issue since 2006. This article concludes that the Executive’s response, as delineated in a January 2014 speech, has yet to be fully implemented; however, the author argues that the disclosures have nonetheless raised new questions about the relative values of privacy and transparency in US intelligence.
- David S. Kris is general counsel of Intellectual Ventures. From 2009 to 2011, he was assistant attorney general for national security at the U.S. Department of Justice. From 2003 to 2009 he held various positions at Time Warner, including deputy general counsel and chief ethics and compliance officer. From 1992 to 2003, he was an attorney and then associate deputy attorney general at the Department of Justice. He is the author of several papers on national security and coauthor of the treatise National Security Investigations and Prosecutions. He graduated from Harvard Law School in 1991.