A federal appeals court ruled on Thursday that the National Security Agency’s bulk collection of U.S. phone records is illegal, dealing a startling blow to the program just as Congress is weighing reforms to surveillance authorities.
A three-judge panel of the 2nd Circuit U.S. Court of Appeals deemed that dragnet collection of American call data does not constitute information relevant to terrorism investigations under Section 215 of the Patriot Act.
The controversial program, exposed publicly nearly two years ago by Edward Snowden, “exceeds the scope of what Congress has authorized,” Judge Gerard Lynch wrote in his decision.
Two other appeals courts have in recent months heard arguments considering the legality of the NSA bulk telephone program, but neither has issued a ruling yet. Any split among the courts will likely prompt a Supreme Court review.
The NSA’s domestic surveillance of phone metadata—the numbers, time stamps and duration of calls but not their content—came under intense scrutiny following the program’s disclosure by Snowden, a former NSA contractor, in June 2013.
The decision comes as Congress is weighing legislation that would reform several aspects of the NSA’s surveillance regime, including an effective end to the bulk data program. That legislation, the USA Freedom Act, would instead allow the government to ask telecom companies for phone records on an as-needed basis after obtaining judicial approval for each query.
Lynch did not order an immediate cessation of the surveillance program. Instead, Lynch noted the congressional debate will likely resolve the issue one way or another. Congress must act in some fashion before June 1, when Section 215 is due to sunset, or let the authority—which the NSA uses to justify the program—expire completely.
“If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised,” Lynch wrote. “If Congress fails to reauthorize [Section 215] itself, or reenacts [Section 215] without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end, and once again there will be time to address what if any relief is required in terms of the data already acquired by the government.”
But Congress is currently locked in a standoff over how—or whether—to reform the NSA’s surveillance authorities. The House is expected to easily pass the Freedom Act next week, but Senate Majority Leader Mitch McConnell has introduced a bill that would extend Section 215 of the Patriot Act unchanged for another five and a half years, until December 2020.
McConnell has said there is likely not enough time to deal with the matter before June 1 except by passing some sort of clean reauthorization. His top deputy, Majority Whip John Cornyn, has indicated a far shorter extension may be offered.
But the surveillance deadline is getting wrapped up into broader congressional fights over an international trade deal and highway infrastructure funding. Senate Minority Leader Harry Reid has said he will block a vote on the trade deal before Congress acts on surveillance and highway funding, both of which face deadlines at the end of the month. McConnell, in response, has indicated he will not budge from demanding a vote first on the trade deal, which represents a rare alliance between the White House and Republicans.
Rep. Jim Sensenbrenner, the original author of the post-9/11 Patriot Act, has insisted since the Snowden revelations emerged that Congress never intended to grant the government the authority to scoop up U.S. phone data in bulk.
“The government’s overbroad collection is based on a blatant misreading of the law,” Sensenbrenner said during a House Judiciary Committee vote last week on the Freedom Act, which he has also authored. The panel easily passed the bill 25-2.
The government has long argued that the Patriot Act’s language supporting collection of records deemed “relevant” to a national security investigation justifies mass surveillance. But Judge Lynch took extreme issue with that interpretation.
“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,” Lynch wrote. “We agree with appellants that such an expansive concept of ‘relevance’ is unprecedented and unwarranted.
Sen. Rand Paul, a vocal critic of NSA spying who is running for president, quickly cheered the decision on Twitter.
RETWEET if you agree with this mornings court ruling that the NSA’s collection of phone records is illegal!— Dr. Rand Paul (@RandPaul) May 7, 2015
Thursday’s ruling is in response to a lawsuit filed by the American Civil Liberties Union that argued the mass surveillance program violated the constitutional privacy rights of Americans. Lynch did not rule specifically on the privacy implications of the NSA’s program, however, because he deemed it was never appropriately authorized under law.
The decision also represents the first time a high-level judicial body outside the secretive Foreign Intelligence Surveillance Court has weighed the legality of the bulk records program. The FISA Court has been pilloried by privacy advocates as a “rubber stamp” for the NSA, approving an overwhelming number of requests related to surveillance authority.
In December 2013, a district court judge derided the surveillance program “almost Orwellian” and a likely breach of the Fourth Amendment’s privacy rights.