Here’s why the NSA should have asked for court approval before tracking cellphone users

Newly declassified National Security Agency documents reveal that the agency didn't ask for court approval before collecting the location data of some cellphone users. That's a problem because location data is far more personal and revealing than other forms of "metadata" that the courts have held the government can access without court approval.

An April 1, 2011 memo to a member of the Senate Select Intelligence Committee from an attorney with the NSA's Office of General Counsel states that the Department of Justice advised the agency that collecting cell site location data for testing was fine under the current order. But NSA didn't ask for specific sign-off from the Foreign Surveillance Intelligence Court (FISC), the secret court that oversees the spy agency's programs. Instead, the memo notes that the NSA believes that Justice "orally advised" the court that the NSA was collecting location data sets for test purposes. Based on the memo’s account, it appears that the FISC did not issue a specific opinion explicitly authorizing the collection of cellphone site location data -- instead, they relied on Justice's legal interpretation of the existing metadata order, likely similar to the Verizon order revealed in June 2013. But Amie Stepanovich, the director of the Domestic Surveillance Project at the Electronic Information Privacy Center believes that bypassing FISC approval for the collection of location data is a troubling practice. "By leaving the FISC out of the decision process," she argues, "the NSA is evincing a wanton disregard for meaningful oversight and for the sensitivity of the information at issue."