NSA's telephone metadata collection not authorized by Patriot Act - appeals court

AFP Photo/Paul J. Richards
The collection of telephone metadata by United States intelligence services “exceeds the scope of what Congress has authorized,” a federal appeals court has ruled in a major blow to the National Security Agency.

On Thursday, the US Court of Appeals for the Second Circuit said the American Civil Liberties Union can sue the director of national intelligence over the NSA’s bulk collection program, reversing a ruling handed down more than a year earlier.

A district court judge had previously dismissed a lawsuit filed by the ACLU in June 2013 less than a week after documents leaked by former NSA contractor Edward Snowden revealed that the agency has regularly collected records of phone calls pertaining to millions of Americans. The ACLU appealed that ruling in January 2014 and its suit has been remanded back to the district court upon this week’s decision.

Contrary to the government’s earlier arguments, the appeals court said that the metadata collection program exposed by Snowden isn’t allowable under Section 215 of the Patriot Act.

“We conclude that the district court erred in ruling that § 215 authorizes the telephone metadata collection program, and instead hold that the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates,” the three-person appeals panel unanimously ruled.

READ MORE: ACLU sues Obama administration over NSA surveillance

The ACLU first filed the claim after NSA documents published in the Guardian revealed that Verizon, the US-based telecom, has been compelled through secret court order to provide the federal government with call records on a daily basis. Those top-secret documents provided a previously unseen glimpse at the American surveillance apparatus and gave way to details about how the post-9/11 Patriot Act has covertly been used to collect metadata, including details about the date, length and numbers dialed pertaining to millions of daily phone calls.

Specifically, Sec. 215 provides for the government to order the production of “any tangible things” in order to protect against terrorism. It’s since been interpreted to require telecoms to hand over all metadata, regardless of who it applies to.

ACLU attorneys claimed their constitutional rights had been violated on account of being a customer of Verizon and therefore subject to the persistent surveillance, but the government insisted that details swept up through the metadata collection program are only queried during certain instances, subject to privacy protections and relevant to national security investigations.

“Because the NSA’s aggregation of metadata constitutes an invasion of privacy and an unreasonable search, it is unconstitutional under the Fourth Amendment,” the ACLU wrote when the suit was filed within a week of the first Snowden disclosure. “The call-tracking program also violates the First Amendment, because it vacuums up sensitive information about associational and expressive activity.”

The Second Circuit took the ACLU’s claims further this week and opined that operating the NSA program doesn’t necessarily constitute an unlawful search of personal data, but rather a seizure—also prohibited by the Fourth Amendment to the US Constitution—and a potential violation of the First Amendment.

“When the government collects appellants’ metadata, appellants’ members’ interests in keeping their associations and contacts private are implicated, and any potential “chilling effect” is created at that point. Appellants have therefore alleged a concrete, fairly traceable and redressable injury sufficient to confer standing to assert their First Amendment claims as well,” the court said.

“The more metadata the government collects and analyzes, furthermore, the greater the capacity for such metadata to reveal ever more private and previously unascertainable information about individuals,” the courts acknowledged.

Furthermore, the appellate judges agreed that the government’s reliance on supposed “relevance” when citing intelligence targets is over encompassing, to say the least. The basic requirements for metadata collection under the provision “are simply that the records be relevant to an authorized investigation,” the court acknowledged. However, the government has argued that all call records are relevant since, according to the appeals panel, “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,” the court said, adding “The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here.”

Anthony Romero, the executive director of the ACLU, said in a statement after Thursday’s ruling that the impact “will extend far beyond the mass phone records program.” The appeal court’s decision, he said, could very well “call into question the legality of many other government mass surveillance programs – and truly demonstrate the need for systemic reform.”

Indeed, the Second Circuit agreed that the issue may best be left up to the legislative branch. “The primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary,” they opined.

Rep. Justin Amash (R-Michigan), an adamant critic of the surveillance programs, wrote on Twitter that the ruling was “a victory for the liberty and privacy of all Americans.” Sen. Rand Paul (R-Kentucky), the 2016 GOP hopeful, added that he was “pleased” and said “the phone records of law abiding citizens are none of the NSA’s business.” Sec. 215 is currently slated to expire in June, giving Amash and Paul’s colleagues less than a month to decide what course to take.

“Allowing the program to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on appellants’ privacy than they faced at the time this litigation began,” the Second Circuit said. “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.”