To be sure, the cases that have been decided in these contexts do not involve collection of data on the scale at issue in the telephony metadata collection program, and the purpose for which information was sought in these cases was not as expansive in scope as a nationwide intelligence collection effort designed to identify terrorist threats. While these cases do not demonstrate that bulk collection of the type at issue here would routinely be permitted in civil discovery or a criminal or administrative investigation, they do show that the “relevance” standard affords considerable latitude, where necessary, and depending on the context, to collect a large volume of data in order to find the key bits of information contained within.

This “to be sure” is one for the ages. Far from authorizing the warrantless fishing expeditions into millions of records, Congress in amending Section 215 meant explicitly to forbid what the Justice Department now seeks to justify. As the Electronic Privacy Information Center notes in a brief filed last week with the Supreme Court, both Congressional supporters and opponents of Section 215 explicitly interpreted the “relevance” language to limit bulk collection of data, not to permit it. On July 17, during a House judiciary committee hearing, Representative James Sensenbrenner, the author of section 215, said that Congress amended the law in 2006 to impose the relevance requirement in “an attempt to limit what the intelligence community could be able to get pursuant to Section 215.” And during the debate over the 2006 amendments, Sen. Ron Wyden and others stressed that the relevance standard would address “concerns about government ‘fishing expeditions.’”

Moreover, as the EPIC brief makes clear the government’s claim that all telephone metadata on all U.S. persons is “relevant to authorized investigation” is simply not credible because it eliminates the relevance standard in two ways. First, it applies the relevance requirement only after data are collected, not before, allowing the mass collection that Congress meant to forbid. Second, it makes the remarkable claim that all telephone metadata is relevant under Section 215 because somewhere within that vast dataset there may be individual data elements that are, in fact, relevant.” In other words, the government argues that the FISC can authorize the collection of data from hundreds of billions of Verizon calls, even though “only a small portion of the data that is collected is ever actually reviewed, because the vast majority of that data is never going to be responsive to one of these terrorism- related queries.”

As the EPIC brief makes clear, the government’s practice of collecting data on hundreds of billions of calls each year and then later, unilaterally, deciding what is actually relevant (fewer than 300 last year) is not permitted by section 215. Moreover, given the scope of material covered by section 215, if it were permitted, it would allow the government to sweep up almost any data on the basis that some of it might prove relevant later. For example, the argument, if accepted, would allow the government to seize billions of medical records or book or library records without a warrant—the textbook definition of an unconstitutional fishing expedition. The White Paper’s attempt to disavow this possibility boils down to: trust us. Here is the legalese: “This conclusion does not mean that the scope of Section 215 is boundless and authorizes the FISC to order the production of every type of business record in bulk—including medical records or library or book sale records, for example,” the White Paper notes. “Although there could be individual contexts in which the Government has an interest in obtaining medical records or library records for counterterrorism purposes, these categories of data are not in general comparable to communications metadata as a means of identifying previously unknown terrorist operatives or networks.” In other words, we don’t think bulk collection of medical records is necessary to stop terrorism, but if we did, we could collect it.

It is not only the words “relevance” and “imminence” that the Obama administration has redefined beyond recognition. Now it has turned its sites to the word “targeted.” The administration has claimed repeatedly that “we do not target the content of U.S. person communications without a specific warrant anywhere on the earth,” as the Deputy Director of the NSA told Congress in June. But as Charles Savage reported in the Times, the administration has now introduced a secret rule arguing that if the target is a foreign communication, bulk communications of U.S. citizens tangentially associated with the target are permissible, and individual names of U.S. citizens may be queried as long as the communications aren’t stored. The legal analysis justifying this twisting of the Foreign Intelligence Surveillance law, according to Savage, echoes still secret reasoning first introduced in 2008 by the Bush administration to justify to real time scanning of communications for malicious computer codes.