 The National Security Agency has argued the bulk collection was legal because of
a key component in the federal Patriot Act. But in the ruling issued Thursday,
the 2nd Circuit U.S. Court of Appeals did not buy that reasoning and said the
NSA overstepped its authority to spy on Americans’ communications.
Image via Wiki Commons
Image via Wiki Commons
ANOTHER LOSS: The NSA’s controversial telephone metadata collection program was
ruled illegal by the Second Circuit Court of Appeals on Thursday.
“The telephone metadata program exceeds the scope of what Congress has
authorized,” wrote judge Gerard Lynch in the majority opinion.
It’s another judicial defeat for the National Security Agency’s surveillance
program. A lower federal court ruled last month the program was
unconstitutional, but this ruling only addresses the legality, not the
constitutionality, of the program.
In both cases, the federal government argued that a key part of the Patriot Act
— known as Section 215 — allowed the agency to secretly intercept and store mass
amounts of telephone metadata. That information includes the numbers dialed and
the lengths of phone calls. That provision of the Patriot Act is set to expire
in June, unless Congress reauthorizes it.
Lynch recognized that members’ limited access to information about the secret
program also limited discussion about the program when it was brought up for
reauthorization in 2010 and 2011.
“Practically speaking, it is a far stretch to say that Congress was aware of the
FISC’s legal interpretation of Section 215 when it reauthorized the statute in
2010 and 2011. We therefore cannot accept the argument that Congress, by
reauthorizing Section 215 without change in 2010 and 2011, thereby legislatively
ratified the interpretation of Section 215 urged by the government,” Lynch said.
The FISC, or Foreign Intelligence Surveillance Court, is the federal
government’s spy court.
“The widespread controversy that developed, in and out of Congress, upon the
public disclosure of the program makes clear that this is not a situation in
which Congress quietly but knowingly adopted the FISC’s interpretation of
Section 215 because there was no real opposition to that interpretation.”
Because of the approaching deadline, Lynch said the court chose to take a pass
on the constitutional issues for now and also declined to issue an order
immediately halting the NSA bulk collection program. A lower court in 2013 had
ruled the program did not violate the Fourth Amendment.
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 “The government vigorously contends that the program is necessary
for maintaining national security, which of course is a public
interest of the highest order,” Lynch wrote. “In 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.”
But even without issuing an order to shut down the program or
addressing the constitutional issues, Thursday’s decision is an
important one. The 2nd Circuit is essentially telling Congress it
will have to approve a more expansive version of the Patriot Act to
keep the NSA program intact.
The key question is whether Congress will have the desire to do
that.
Senate Majority Leader Mitch McConnell, R-Kentucky, indicated toward
the end of April that he was prepared to push a re-authorization of
Section 215 through the Senate without using the traditional
committee process. That has raised the ire of civil libertarian
groups who want to see Section 215 expire, the NSA program shut down
and the Patriot Act reined in.
“The move is a clear signal that Senator McConnell appears ready to
reauthorize provisions of the Patriot Act called into question by
civil liberties and security experts alike – without even a whisper
of debate,” said Neema Singh Guliani, legislative counsel for the
ACLU.
McConnell’s decision is at odds with President Obama’s independent
review board, the Privacy and Civil Liberties Oversight Board, which
concluded in June 2014 the program was illegal and its effectiveness
was overstated.
The House Judiciary Committee’s approval of the USA FREEDOM Act at
the end of April, which would ban the federal government’s bulk
collection programs, won the applause of civil libertarians.
Kevin Bankston, policy director at New America’s Open Technology
Institute, called it a “a necessary first step on the longer road to
more comprehensive reforms.”
“USA FREEDOM won’t fix every surveillance program, but it will put
an end to the worst offender: the NSA’s bulk collection of telephone
records,” said Berin Szoka, president of the nonpartisan think tank
TechFreedom.
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