NSA's mass collection of cell-phone geolocation data occurred without court approval

So reported the Washington Post this week. Though Grits hasn't closely tracked the NSA surveillance debacle, I mention it because the reasoning outlined in the article for why they claimed a court order wasn't necessary have implications for how domestic law enforcement uses geolocation data. Here's how the article ended:

Much of the U.S. government's authority to collect metadata without a warrant is derived from a 1979 Supreme Court ruling over the small-scale collection of call records. But that ruling was made long before the widespread use of cellular technology and the surveillance applications that came along with it. The courts haven't set clear precedents on how location data should be handled given those more current applications.

A July ruling from the United States Court of Appeals for the Fifth Circuit held that individuals don't have a reasonable expectation of privacy for location data collected by phone companies, calling the data the equivalent of a "business record." But the U.S. Court of Appeals for the Third Circuit recently held that police need a warrant to attach a GPS tracker to the vehicle of a suspect. And in a ruling on similar GPS case last year, five Supreme Court Justice suggested that even without a physical trespass, ongoing electronic surveillance may be "an unconstitutional invasion of privacy." But the court did not rule specifically on how the government may use private data collected by modern technology.

So it's problematic that the NSA didn't seek judicial approval before embarking on trials with cell site data. The FISC is supposed to be the judicial oversight for legal issues involving sensitive national security concerns. But it never had an opportunity to weigh in on this case.

Turns out, according to emptywheel, Congressional intelligence oversight committees weren't notified of the project before it began, either. In the wake of the 5th Circuit case mentioned in the story (see Grits' discussion here), it's more important than ever that state legislatures and ultimately Congress address this issue head on.