On January 3, 2014, the US Foreign Intelligence Surveillance Court (“FISC”) once again renewed the NSA’s authority to continue collecting telephone metadata.

To quickly summarize how the metadata program works, the NSA makes an application to FISC, FISC reviews the application, and (if approved) issues an order to the telephone companies. The order requires the companies to supply their metadata to the NSA, and expires after 90 days. This is why the NSA needs to seek renewal every 3 months. The most recent authorization expired on January 3rd, the NSA applied for renewal, and the FISC court approved renewal.

Why is this unsurprising?

The metadata program began in May of 2006, and since then has been renewed 36 times by 15 different FISC judges. While most of these renewals happened in secrecy, thanks to new public attention and pressure the Director of National Intelligence James R. Clapper has declassified and disclosed the most recent renewals.

As part of that declassification, we’ve learned that even when the NSA failed to comply with FISC-ordered procedures, the FISC continued to approve renewals. For example, in January of 2009, the NSA improperly searched the metadata in a non-approved way. FISC Judge Walton acknowledged this breach in procedure was significant, and issued a sanction that required the NSA to seek approval for searches on a case-by-case basis. This sanction did little to deter the NSA because it only remained in place from March 2009 to September 2009, and throughout the whole ordeal the FISC barely hesitated in renewing the NSA’s authority. [Klayman v. Obama, p. 21-22]

Even when the government admitted it misused its authority, the FISC continued to renew this program, and so it’s little surprise it has done so once again this past Friday.

So is it important at all?

Even though most courts and judges agree the NSA metadata program is legal, U.S. District Court Judge Richard Leon disagrees. Two people, Larry Klayman and Charles Strange, both sued President Obama to try and stop metadata collection. On December 16, 2013, Judge Leon found the metadata program to be “almost Orwellian”, likely unconstitutional, and ordered the government to cease data collection, but only for Klayman and Strange. Further, he ordered the NSA to delete any data it had already collected on them. [Klayman v. Obama, p. 67] Judge Leon also stayed his own order, which means it was put on pause, in case the Government wanted to appeal his ruling. Unsurprisingly, President Obama, Attorney General Eric Holder, and NSA Director Keith Alexander formally appealed this order.

So we’re left with a situation where President Obama publicly calls for review of the metadata collection program but who still tries to keep the program alive, a mere smattering of judges who believe it to be unconstitutional, and an overwhelming majority of courts and judges who think it is perfectly legal. The latest FISC renewal, made at the height of public scrutiny, is a clear indicator that the Obama Administration, the NSA, and the FISC do not intend on putting the metadata collection program on hold at all, not even for a short period to review its legality.