The unprecedented and unwarranted bulk collection of Americans’ phone records by the government is illegal because it wasn’t authorized by Congress, a federal appeals court said Thursday as it asked legislators to decide how to balance national security and privacy interests.
The National Security Agency’s collection and storage of U.S. landline calling records — times, dates and numbers but not content of the calls — was the most controversial program among many disclosed in 2013 by former NSA systems administrator Edward Snowden. Some NSA officials opposed the program, and independent evaluations have found it of limited value as a counterterrorism tool. Snowden remains exiled in Russia.
On Thursday, a three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan permitted the NSA to continue temporarily as it exists, but all but pleaded for Congress to better define where boundaries exist.
“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,” said the opinion written by Circuit Judge Gerald Lynch.
“The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,” the court said. “The sheer volume of information sought is staggering.”
A lower court judge in December tossed out an American Civil Liberties Union lawsuit, saying the program was a necessary extension to security measures taken after the Sept. 11, 2001, terror attacks. The appeals court said the lower court had erred.
U.S. Attorney General Loretta Lynch said the government is reviewing the court’s decision. She added that the June 1 expiration of the Patriot Act provisions provides opportunities to reauthorize the program “in a way that does preserve its efficacy and protect privacy.”
The court’s ruling sharpens the focus on the ongoing congressional debate surrounding the program.
Republicans and Democrats in the House of Representative have agreed on a bill to end the government’s bulk collection of the records, but Senate leaders are backing a competing measure that would maintain the status quo.
Senate Majority Leader Mitch McConnell and Intelligence Committee Chairman Richard Burr took to the Senate floor Thursday with forceful arguments in favor of continuing the bulk collection. A Senate aide, however, speaking on condition of anonymity because he was not authorized to be quoted about internal deliberations, told The Associated Press that the two senators remained open to a compromise that replaces NSA collection with a workable alternative that allows the agency to hunt for terror plots in the U.S.
The divisions on the issue don’t run neatly along partisan lines. Libertarian-leaning Republicans have joined many Democrats in arguing that a secret intelligence agency should not be storing the records of every American phone call, even if the data are only examined under limited circumstances. Some Democrats and Republicans assert that the program is needed now more than ever, given the efforts by the Islamic State group to inspire extremists to attack inside the U.S.
The House Judiciary Committee last month overwhelmingly passed the latest version of a bill known as the USA Freedom Act. The measure seeks to codify President Barack Obama’s proposal to end the NSA’s collection and storage of the phone records. Instead, it would allow the agency to request records held by telephone companies under a court order in terrorism investigations.
Under that proposal, the NSA might end up with access to even more data. As it stands, the program doesn’t collect data on most mobile calls, but under a new arrangement, the NSA could request mobile records as needed from phone companies.
NSA spokesman Edward Price said the agency is evaluating the ruling and added that it’s working closely with Congress on reforms.
Jameel Jaffer, ACLU deputy legal director and lead counsel in the case, said the decision “warrants a reconsideration of all of those programs, and it underscores once again the need for truly systemic reform.”
Democratic Rep. Adam Schiff, a ranking member of the House intelligence committee, said he hopes the ruling serves as a “catalyst for an end to bulk collection and the beginning of serious reform.”
The 2nd Circuit noted that telephone metadata includes a call’s length, the phone number from which it was made and the phone number called.
Opponents of the program say the information can enable the government to learn, for instance, whether someone has called a domestic violence, rape or suicide hotline or whether someone has reported a crime. They say it can also reveal civil, political or religious affiliations, an individual’s social status and whether the person is involved in an intimate relationship.
FIVE THINGS ABOUT THE RULING:
NOT-SO-SECRET SURVEILLANCE PROGRAM
At issue is an NSA program that for years has been collecting and storing data on American phone calls — a closely held secret until it was leaked by former NSA systems administrator Edward Snowden in 2013. The NSA collects information on the number called and date and time of the call, and stores it in a database that it queries using phone numbers associated with terrorists overseas. Officials say they don’t use the data for any other purpose.
The idea is to hunt for hidden domestic terrorists akin to the hijackers who carried out the 9/11 attacks. But the program has not been particularly valuable as a counter-terrorism tool, and is becoming less so, since, for technical and bureaucratic reasons, the NSA has not been gathering the data on most mobile calls.
DEMOCRATIC APPOINTEES AGREE
A three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan ruled that the practice was not legally justified under the law its creators cited to implement it, Section 215 of the USA Patriot Act. In a unanimous ruling written by Judge Gerard Lynch, the court held that Section 215 “does not authorize the telephone metadata program,” despite years of secret legal rulings by an intelligence court that it could.
The appeals court rejected an argument that since the law allows the government to seize records relevant to a terrorism investigation, it was sufficient to declare all the country’s phone records relevant. The ruling, however, allows the program to continue, since the provisions expire June 1 and Congress is debating their future.
All three of the 2nd Circuit judges are Democratic appointees.
CONSTITUTIONAL ISSUE UNRESOLVED
What the court did not address was whether the program is constitutional. Other legal cases have argued that it is not.
Opponents say the seizure and search of their records from telephone companies violates their expectations of privacy under the Fourth Amendment because the government failed to obtain a search warrant based on probable cause to believe that evidence of criminal conduct will be found in the records. The program’s backers rely on what is known as the third-party doctrine, under which the Supreme Court has held that personal records people voluntarily turn over to companies, including phone records and email, are not protected by the Fourth Amendment.
CONGRESSIONAL DEBATE CONTINUES
The court’s ruling sharpens the focus on the ongoing congressional debate about the program. The Patriot Act provisions in question expire June 1 unless Congress reauthorizes them. Republicans and Democrats in the House have agreed on a bill to do that while also ending the government’s bulk collection of the records. Senate leaders are backing a competing measure that would maintain the status quo, but they are open to compromise.
The divisions on the issue don’t run neatly along partisan lines. Libertarian-leaning Republicans have joined many Democrats in arguing that a secret intelligence agency should not be storing the records of every American phone call. Some Democrats and Republicans assert that the program is needed now more than ever, given the efforts by the Islamic State group to inspire extremists to attack inside the U.S.
The House Judiciary Committee last month overwhelmingly passed the latest version of a bill known as the USA Freedom Act, which would end the NSA’s collection and storage of the phone records. Instead, it would allow the agency to request records held by telephone companies under a court order in terrorism investigations.
A NOD TO SNOWDEN?
Some were arguing Thursday that the court’s ruling was a vindication for Snowden, who is under indictment in the U.S. and living in exile in Moscow. Indeed, one of the three judges, Robert Sack, authored a separate opinion that appeared to paint Snowden as a whistleblower.
Many other people, including senior U.S. officials, sharply disagree. They note that Snowden’s disclosures about NSA activities were far broader than this single program, revealing espionage that had no implication for Americans’ privacy.
Former CIA Deputy Director Michael Morell served on a task force in the wake of the Snowden leaks that recommended ending NSA’s bulk collection of phone records. In a new book, Morell calls Snowden’s leak “the greatest compromise of classified information ever” that did “enormous” damage.
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