When it came to light in 2013 that the National Security Agency had been routinely storing all data on the telephone habits of all Americans, public outrage ensued. And no one was as upset as Rep. James Sensenbrenner, R-Wis., the conservative who shepherded the Patriot Act through Congress in 2001 as House Judiciary chairman.
Sensenbrenner responded to the revelation by insisting that the law he wrote allows no such indiscriminate mass surveillance of Americans in order to thwart terrorists. On Thursday, the Second Circuit U.S. Court of Appeals issued a landmark ruling that vindicates Sensenbrenner’s view.
“The government may need the haystack to find the needle,” Sensenbrenner wrote in the Los Angeles Times in 2013, “but gathering the haystack without knowledge that it contains the needle is precisely what the relevance standard and Section 215 are supposed to prevent.”
Sensenbrenner was referring specifically to the law’s requirement that the government collect only information “relevant to an authorized investigation.” The court cited this problem repeatedly in its ruling that the NSA exceeded its statutory authority when it began routinely seizing and storing the telephone metadata of essentially every American who uses a phone.
“The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects,” the court noted. “[T]hey extend to every record that exists, and indeed to records that do not yet exist.”
The three-judge panel also cited a justification frequently offered for the Patriot Act at the time of its original passage — that it empowered law enforcement to use the same techniques in monitoring terrorists as it was already using against drug dealers and money launderers.
“The techniques traditionally used to combat such ordinary crimes,” the court noted, “have not included the collection … of a vast trove of records of metadata concerning the financial transactions or telephone calls of ordinary Americans to be held in reserve in a data bank, to be searched if and when at some hypothetical future time the records might become relevant to a criminal investigation.”
This ruling comes at an important moment, just as Section 215 is about to expire and is up for renewal in Congress.
The court noted that Congress could choose to broaden the provision to allow what NSA has been doing, but it refused to directly address the deeper constitutional question of whether such surveillance would violate the Constitution. The plaintiffs in the case, including the ACLU, argued that such surveillance violates Americans’ freedom of association and freedom from unreasonable search and seizure.
That question may have to be decided another day. But as the court noted, some of the Supreme Court justices have hinted in tangentially related cases that they might be willing to revisit the 40-year-old precedents that uphold robust government surveillance.
In the meantime, it would be an enormous mistake for Congress to restore this seemingly unreasonable and possibly unconstitutional power to the NSA. There is simply no need for the government to store and potentially comb through the personal data of hundreds of millions of people not even remotely suspected of involvement in terrorism.
