President Obama is in an awkward position after a federal appeals court ruled that government bulk collection of Americans’ phone data is illegal.
For years President Obama secretly backed that government snooping program in the name of countering terrorism.
But after National Security Agency leaker Edward Snowden exposed the existence of the bulk phone records collection, Obama caved to the pressure and advocated for a middle-ground approach that in some ways preserved the right of the government to access the data and only switched where it was stored — with the phone companies, not U.S intelligence agencies.
But the Second Circuit Court of Appeals’ Thursday decision that the sweeping phone data collection program extends far beyond what Congress passed into law handed new ammunition to critics who want to end the program completely.
After the ruling, Sen. Ron Wyden, D-Ore., a staunch and early critic of the 215 program, along with Sen. Martin Heinrich, D-N.M., called on the White House to end the mass surveillance of Americans once and for all.
“This is a huge step for individual Americans’ rights,” Wyden said in a statement. “This dragnet surveillance program violates the law and tramples on Americans’ privacy rights without making our country any safer. It is long past time for it to end.”
Wyden, Heinrich and former Sen. Mark Udall, D-Colo., last year filed a brief in support of the American Civil Liberties Union, which filed the Second Circuit case.
The ruling, Heinrich said, “should give the president the confidence to finally end this overly broad program using his existing authority.”
But the president, as the commander in chief charged with fighting terrorist threats, still sees the virtue in preserving the government access to the data in some capacity.
Last year he put out a plan that would allow phone companies, not the government, to collect and store the data and U.S. intelligence agencies to only have access to the information if a special court granted them permission to it.
Congress went its own way and last year worked on a bipartisan compromise bill, which Sens. Patrick Leahy, D-Vt., and Mike Lee, R-Utah, revised this year and Obama has signaled he would likely support.
Meanwhile, Senate Majority Leader Mitch McConnell, R-Ky., and Intelligence Committee Chairman Richard Burr, R-N.C., recently filed a straight renewal bill that would preserve the law in its entirety.
But with the court’s ruling, the momentum is clearly on the side of either mending it or ending it completely.
Leahy and Lee on Thursday called on McConnell to bring up their bill, dubbed the USA Freedom Act, now that the court has ruled the program illegal.
“The dragnet collection of Americans’ phone records is unnecessary and ineffective, and now a federal appellate court has found that the program is illegal,” they said. “Congress should not reauthorize a bulk collection program that the court has found to violate the law. We will not consent to any extension of this program.”
But staunch opponents of any renewal of the bulk collection program say the USA Freedom Act doesn’t go far enough to jettison the spying completely and that the court is now on their side.
A politically diverse group of civil liberties organizations earlier this week urged Congress to reject the compromise bill and let the act expire on June 1.
Groups such as CREDO Mobile — a San Francisco-based mobile network operator that funds liberal causes — the Republican Liberty Caucus and the Sunlight Foundation joined forces in lobbying Congress not to back any type of renewal.
Reacting to the appeals court decision Thursday, Credo said any reauthorization of section 215 of the Patriot Act “will grant telecoms immunity for breaking the law and threatens to ratify what the court has clearly declared illegal search and seizure of Americans’ private information.”
Section 215 of the Patriot Act allows intelligence agencies to acquire phone and other records that are “relevant” to a counter-terrorism investigation. Critics of the provision say intelligence agencies and the Foreign Intelligence Surveillance Court have pushed the interpretation of “relevance” beyond the author of the law’s original intent in order to cover potentially all phone records from phone companies in the U.S.
The USA Freedom Act would narrow the scope and scale of the records, including phone metadata that intelligence agencies can gather.
Rather than use a dragnet for all records from a phone company, U.S. intelligence agencies would have to show that a “specific selection term” — such as an account for a personal device like a cell phone — could be connected to international terrorism in order to request records based on that term.
