Why federal appeals court declared NSA phone records collection unlawful

The US government’s program to collect virtually all telephone metadata generated in the United States is illegal and beyond any terms of congressional authorization, a federal appeals court panel ruled on Thursday.

In a unanimous decision, a three-judge panel of the New York-based Second Circuit Court of Appeals rejected the Obama administration’s argument that Congress had granted it broad authority to collect and store a wide range of information from telecommunications companies.

At issue was the scope of Section 215 of the Patriot Act and whether it authorized the government to vacuum up an apparently unlimited amount of telephone information to be stored in a massive database for potential use later by investigators.

The court did not reach the broader constitutional question of whether the program violated the Fourth Amendment privacy rights of Americans. The judges noted that Congress is debating a new version of Section 215, which is set to expire on June 1.

As such, lawmakers could render the litigation moot if they address the court’s concerns. Or, if the law is reauthorized in its current form, that would set the stage for the courts to address the constitutional issues.

The appeals court decision stems from a lawsuit filed by the American Civil Liberties Union asking a judge to declare the National Security Agency collection effort to be illegal and unconstitutional. The federal judge had upheld the program.

In reversing that decision, the appeals court sent the case back to the federal judge to consider whether an injunction should be issued blocking the metadata program.

“The interpretation that the government asks us to adopt defies any limiting principle,” Circuit Judge Gerard Lynch wrote in a 97-page opinion.

“If the government is correct, it could use [Section 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,” Judge Lynch wrote.

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

“Perhaps such a contraction is required by national security needs,” Lynch said. “But we would expect such a momentous decision to be preceded by substantial debate [in Congress], and expressed in unmistakable language.”

The case is one of three pending in the courts challenging NSA surveillance tactics. The wide scope of the once-secret NSA program was not fully known until former government contractor Edward Snowden revealed it through a series of leaks to media organizations.

The Snowden revelations arose at a time when many Americans were becoming increasingly alarmed at the large amount of information that various digital databases could reveal about their private lives. It also arose as Americans were becoming increasingly suspicious of efforts by their own government to collect and store information about them, even though they’d done nothing wrong and were not under investigation.

The US Supreme Court has responded to broad privacy concerns by limiting the investigative use of technology when seen to bypass protections of privacy guaranteed under the Fourth Amendment.

For example, the high court has told investigators that they must obtain judicial authorization before planting a GPS monitoring device on the car of a suspected drug dealer. And the court has told police they must obtain a warrant before searching the contents of a cellphone seized during an arrest.

The metadata collection and database storage question in the Second Circuit case has not yet been considered by the Supreme Court.

Lynch noted that that Congress is currently debating new versions of Section 215. He said the appeals court’s ruling was made with an eye toward Congress addressing key issues raised in the litigation. In its current form, Section 215 “cannot bear the weight the government asks us to assign to it,” he said.

“If Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously,” he said.

“Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well-established legal standards,” the judge said.

ACLU executive director Anthony Romero is skeptical of the debate under way in Congress to improve the statute.

“The current reform proposals from Congress look anemic in light of the serious issues raised by the Second Circuit,” Mr. Romero said in a statement. “Congress needs to up its reform game if it’s going to address the court’s concerns.”

Lawyers at the ACLU called the Second Circuit’s decision a landmark. “For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority,” ACLU staff attorney Alex 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,” he said. “Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society.”

The ACLU wasn’t alone in praising the ruling. Jenny Beth Martin, co-founder of the conservative Tea Party Patriots, said her organization was “greatly encouraged” by the decision.

“The Court’s ruling should be the first step in restoring Americans’ privacy and personal liberty, and serve notice on a statist [Obama] administration bent on exercising progressively more control over its citizens’ lives,” she said.

The case is ACLU v. Clapper (14-42-cv).