Top federal court rules against NSA's phone records program

Top federal court rules against NSA's phone records program

By Julian Hattem - 05/07/15 09:25 AM EDT

A federal court has decided that the National Security Agency’s bulk, warrantless collection of millions of Americans’ phone records is illegal.

The sweeping decision from the Second Circuit Court of Appeals on Thursday represents a major court victory for opponents of the NSA and comes just as Congress begins a fight over whether to renew the underlying law used to justify the program. 

The law “cannot be interpreted in a way that defies any meaningful limit,” he added.

Additionally, the government’s rationale behind the program represents “a monumental shift in our approach to combating terrorism,” which was not grounded in a clear explanation of the law.

The Second Circuit’s decision provides the most significant legal blow to the NSA operations to date and comes more than a year after a lower court called the program “almost-Orwellian” and likely unconstitutional. The appeals court did not examine the constitutionality of the surveillance program in its ruling on Thursday.

The Second Circuit is just one of the three appeals courts examining challenges to the NSA’s phone records program, which may ultimately land at the Supreme Court.

Section 215 of the Patriot Act authorizes the government to collect “any tangible things” that the government proves are “relevant to” an investigation into suspected terrorists.

With the blessing of the Foreign Intelligence Surveillance Court — the secretive federal court overseeing government intelligence operations — the government has interpreted that mandate to allow it to collect massive amounts of records containing “metadata” about people’s phone calls, including the numbers involved in the call and when it occurred.

While seemingly benign, metadata can reveal “civil, political, or religious affiliations,” Lynch wrote, as well as personal behavior and “intimate relationships.”

But that reading, the court ruled, is far beyond what Congress ever intended.

“If the government is correct, it could use § 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e‐mail and social media information) relating to all Americans,” Lynch wrote.

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.”

Congress last reviewed the law in 2011, but even then, many lawmakers were not aware of the details of the NSA’s bulk collection practices.

Because most of the details were kept classified, “Congress cannot reasonably be said to have ratified a program of which many members of Congress – and all members of the public – were not aware,” Lynch wrote.

That all changed two years ago, however, following revelations from former NSA contractor Edward Snowden that detailed the expansive nature of the NSA’s surveillance.

In the wake of those leaks, lawmakers, including Rep. Jim Sensenbrenner (R-Wis.), the original author of the Patriot Act, have made clear they never meant to authorize the NSA’s bulk phone collection program.

They have attempted to rein in the agency by pushing legislation that would end its current collection practices and force it to request from private companies only a narrow set of phone records involved in a case. The debate is simmering in Congress, ahead of Section 215’s scheduled expiration at the end of the month.

That debate might be more important than ever now, since the full details of the NSA phone program have been made public.

If Congress chooses to reauthorize the existing law without change — as Senate Majority Leader Mitch McConnell (R-Ky.) and others want to do — it would likely be seen as a blessing to the current NSA program, the appeals court indicated.

“If Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously,” Lynch wrote. “Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards.”


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