A federal appeals court in New York ruled on Thursday that the once-secret National Security Agency program that is systematically collecting Americans’ phone records in bulk is illegal. The decision comes as a fight in Congress is intensifying over whether to end and replace the program, or to extend it without changes.
In a 97-page ruling, a three-judge panel for the United States Court of Appeals for the Second Circuit held that a provision of the U.S.A. Patriot Act, known as Section 215, cannot be legitimately interpreted to allow the bulk collection of domestic calling records.
The provision of the act used to justify the bulk data program is to expire June 1, and the ruling is certain to increase tension that has been building in Congress.
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The ruling puts new pressure on Senator Mitch McConnell of Kentucky, the majority leader, to make serious changes to the Patriot Act, which he has so far aggressively defended against any alteration, even as recently as Thursday on the Senate floor. Mr. McConnell has pressed to maintain the N.S.A.’s existing program against bipartisan efforts to scale it back, and has proposed simply extending the statute by the June 1 deadline.
But the court’s ruling calls into question whether that statute can still be used to issue new orders to phone companies requiring them to turn over their customers’ records.
Thursday’s ruling is the first time a higher-level court in the regular judicial system has reviewed the N.S.A. phone records program. It did not come with any injunction ordering the program to cease, and it is not clear that anything else will happen in the judicial system before Congress has to make a decision about the expiring law.
The data collection had repeatedly been approved in secret by judges serving on the Foreign Intelligence Surveillance Court, known as the FISA court, which oversees national security surveillance. Those judges, who hear arguments only from the government, were willing to accept an interpretation of Section 215 that the appeals court rejected on Thursday.
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But the appeals court ruling raises the question of whether Section 215, extended or not, has ever legitimately authorized the program. The statute on its face permits only the collection of records deemed “relevant” to a national security case. The government secretly decided, with the FISA court’s secret approval, that this could be interpreted to mean collection of all records, so long as only those that later turn out to be relevant are scrutinized by analysts.
However, 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. 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.”
So, the NSA argued that bulk collection of data is legal because it might be used at some later date for a national security case, and FISA court, which needs to be kept away from toilet paper, because they will sign anything, agreed.
Thankfully, the appellate court rightly called bullsh%$ on this.
Scott Lemieux read the full opinion (it is rather encyclopedic), and gives us these quotes from the opinion:
…the parties have not undertaken to debate whether the records required by the orders in question are relevant to any particular inquiry. The records demanded are all‐encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry…
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Thus, 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.
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To the extent that § 215 was intended to give the government, as Senator Kyl proposed, the “same kinds of techniques to fight terrorists” that it has available to fight ordinary crimes such as “money laundering or drug dealing,” the analogy is not helpful to the government’s position here. The techniques traditionally used to combat such ordinary crimes have not included the collection, via grand jury subpoena, of a vast trove of records of metadata concerning the financial transactions or telephone calls of ordinary Americans to be held in reserve in a data bank, to be searched if and when at some hypothetical future time the records might become relevant to a criminal investigation.
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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. There is no evidence of such a debate in the legislative history of § 215, and the language of the statute, on its face, is not naturally read as permitting investigative agencies, on the approval of the FISC, to do any more than obtain the sorts of information routinely acquired in the course of criminal investigations of “money laundering [and] drug dealing.”
That’s going to leave a mark.
Given Obama’s record on such privacy and 4th amendment protections, I imagine that is already on the phone with Mitch McConnell in an attempt to expand the NSA’s powers.
*Technically, it might be unlawful, rather than illegal, but that is not the important part here. Besides, I am an engineer, not a lawyer, dammit!†
†I love it when I get to go all Dr. McCoy!