Federal Appeals Court Rejects Mass Surveillance by Bush and Obama Administrations

Monday, May 11, 2015
(graphic: Irregular Times)

The National Security Agency’s (NSA) controversial collection of Americans’ phone records has been rejected by a federal appeals court, raising a serious challenge to one of the government’s key antiterrorism programs.


In a case brought by the American Civil Liberties Union (ACLU), the Second Circuit Court of Appeals ruled unanimously that the NSA’s bulk phone data program is illegal.

The government, beginning with the George W. Bush administration and continuing under President Barack Obama, has argued that Section 215 of the Patriot Act authorized the agency to gather and store for up to five years the phone call records of Americans for the purposes of heading off potential threats against the nation.


But the circuit’s three-judge panel rejected that argument, saying in its ruling that Section 215 “cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.” It declared the program illegal, saying, “We do so comfortably in the full understanding that if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.”


Judge Gerard E. Lynch wrote: “Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism. But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.”


Lynch also stated: “The government takes the position that the metadata collected—a vast amount of which does not contain directly ‘relevant’ information, as the government concedes—are nevertheless ‘relevant’ because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of ‘relevance’ is unprecedented and unwarranted.”


The ACLU called the decision “a resounding victory for the rule of law.” Andrew Crocker of the Electronic Frontier Foundation referred to it as “a breath of fresh air.”


“For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority,” the ACLU’s Alexander Abdo said in a statement. “The court rightly rejected the government’s theory that it may stockpile information on all of us in case that information proves useful in the future. Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society.”


Although it declared the data collection illegal, the court did not take the opportunity to shut down the program, according to Ian Millheiser of ThinkProgress. “Allowing the program to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on appellants’ privacy than they faced at the time this litigation began,” the court said. Thus, “[i]n light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.”


Members of Congress have been debating the merits of Section 215, which is set to expire on June 1 unless lawmakers act to renew it.


Even without the court ruling, the phone collection program’s days may be numbered, according to The New York Times. “The House appears ready to pass a bill next week that would end the government’s bulk collection of phone records,” Charlie Savage and Jonathan Weisman wrote. “That bill, known as the USA Freedom Act, would replace it with a new program that would preserve the NSA’s ability to analyze links between callers to hunt for terrorists, but keep the bulk records in the hands of phone companies, which would be free to dispose of them after 18 months. The NSA keeps them for five years.”


However, Senate Majority Leader Mitch McConnell (R-Kentucky) has opposed such a bill and has made known his preference for extending the current law.

-Noel Brinkerhoff


To Learn More:

EFF Case Analysis: Appeals Court Rules NSA Phone Records Dragnet is Illegal (by Andrew Crocker, Electronic Frontier Foundation)

NSA Collection of Bulk Call Data Is Ruled Illegal (by Charlie Savage and Jonathan Weisman, New York Times)

NSA’s Mass-Surveillance Program Suffers a Blow From 2nd Circuit (by Adam Klasfeld, Courthouse News Service)

Federal Appeals Court Rules That The NSA’s Massive Surveillance Program Is Illegal (by Ian Millhiser, ThinkProgress)

American Civil Liberties Union, American Civil Liberties Union Foundation, New York Civil Liberties Union, New York Civil Liberties Union Foundation v. James Clapper (Second Circuit Court of Appeals) (pdf)

NSA Bulk Surveillance Could Continue even if Legal Authority Expires on June 1 (by Noel Brinkerhoff, AllGov)


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