Judge Kollar-Kotelly’s decision approving the program and granting the application strikes me as odd for a few reasons.
First, the opinion largely overlooks the statutory clues that the pen register statute was written for the micro scale, not the macro scale. In particular, key words of the pen register statute are written in the singular not the plural. The statute authorizes the judge to issue an order requiring the installation of “a” pen register to monitor “the person who is the subject of the investigation...”
If the statute allows bulk collection of all Internet metadata, it allows bulk collection of all Internet metadata purely on the AG’s say-so with no review by the FISC. And because the criminal law version of the pen register statute uses the same language but allows any AUSA to get a pen register order, the court’s reasoning would seem to allow the same bulk collection of all Internet metadata simply on the say-so of any random AUSA.
Is that really what Congress authorized?
