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 Ruling on a program revealed by former government security
contractor Edward Snowden, the 2nd U.S. Circuit Court of Appeals in
Manhattan said the Patriot Act did not authorize the National
Security Agency to collect Americans' calling records in bulk.
Circuit Judge Gerard Lynch wrote for a three-judge panel that
Section 215, which addresses the FBI's ability to gather business
records, could not be interpreted to have permitted the NSA to
collect a "staggering" amount of phone records, contrary to claims
by the Bush and Obama administrations.
"Such expansive development of government repositories of formerly
private records would be an unprecedented contraction of the privacy
expectations of all Americans," Lynch wrote in a 97-page decision.
"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."
The appeals court did not rule on whether the surveillance violated
the U.S. Constitution.
 It also declined to halt the program, noting that parts of the
Patriot Act including Section 215 expire on June 1.
Lynch said it was "prudent" to give Congress a chance to decide what
surveillance is permissible, given the national security interests
at stake.
Enacted after the Sept. 11, 2001 attacks, the Patriot Act gives the
government broad tools to investigate terrorism.
Thursday's decision voided a December 2013 ruling in which U.S.
District Judge William Pauley in Manhattan found the NSA program
lawful. The appeals court sent the case back to him for further
review.
NEXT STEP IN CONGRESS
Snowden, a former NSA contractor who lives as a fugitive in Russia,
in June 2013 exposed the agency's collection of "bulk telephony
metadata." This data includes the existence and duration of calls
made, but not the content of conversations.
U.S. Attorney General Loretta Lynch said at a Senate budget hearing
on Thursday that NSA data collection was a "vital tool in our
national security arsenal," and that she was unaware of privacy
violations under its existing program.
Snowden could not immediately be reached for comment.
The 2nd Circuit is the first federal appeals court to rule on the
NSA program's legality. Federal appeals courts in Washington, D.C.
and California are also weighing the matter.
While the government could appeal Thursday's decision, it will
likely wait for Congress.
If Congress revamps the NSA program, then courts may need to review
what it does. And if Congress reauthorizes Section 215, there could
be further litigation that may ultimately require the Supreme
Court's attention.
Scott Vernick, chair of the privacy and data security practice at
Fox Rothschild in Philadelphia, said Congress may struggle to reach
a consensus given how "the pendulum in this country is swinging
toward privacy."
Ned Price, a spokesman for the White House's National Security
Council, said President Barack Obama wants to end the NSA program,
and is encouraged by the "good progress" on Capitol Hill to find an
alternative that preserves its "essential capabilities."
Last week, the House Judiciary Committee voted 25-2 to end the bulk
collection of telephone data through the USA Freedom Act. The bill
is expected to pass the full House, and the White House has signaled
support for it.
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While a similar bipartisan bill is pending in the Senate, Majority
Leader Mitch McConnell and Intelligence Committee chair Richard
Burr, both Republicans, have proposed extending Section 215 and
other parts of the Patriot Act through 2020.
Harry Reid, the Nevada Democrat and Senate minority leader, rejected
that alternative, calling it "the height of irresponsibility to
extend these illegal spying powers when we could pass bipartisan
reform into law instead."
The existing NSA program has repeatedly been approved in secret by a
national security court established under a 1978 law, the Foreign
Intelligence Surveillance Act.
"FISA has been critically important in keeping us safe in America,"
McConnell said on Thursday.
COUNTER-PUNCH
Senators from both sides of the aisle, and who are running for
president, used Twitter to welcome Thursday's decision.
Sen. Rand Paul, a Kentucky Republican, said "phone records of law
abiding citizens are none of the NSA's business!" while Sen. Bernie
Sanders, a Vermont Democrat, said "the NSA is out of control and
operating in an unconstitutional manner."
In upholding the NSA program in 2013, Pauley had called it a
government "counter-punch" to terrorism at home and abroad.
Pauley ruled 11 days after U.S. District Judge Richard Leon in
Washington, D.C. said the "almost Orwellian" program might violate
Fourth Amendment limitations on warrantless searches.
Leon issued an injunction to block the program, but put it on hold
pending appeal.
While the 2nd Circuit did not resolve the Fourth Amendment issues,
Judge Lynch did note the "seriousness" of constitutional concerns
over "the extent to which modern technology alters our traditional
expectations of privacy."
ACLU lawyer Alex Abdo welcomed Thursday's decision.
"Mass surveillance does not make us any safer, and it is
fundamentally incompatible with the privacy necessary in a free
society," he said.
The case is American Civil Liberties Union et al v. Clapper et al,
2nd U.S. Circuit Court of Appeals, No. 14-42.
(Additional reporting by Kevin Drawbaugh, Lindsay Dunsmuir, Mark
Hosenball, David Ingram and Patricia Zengerle; editing by Noeleen
Walder, Grant McCool)
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