The 2nd Circuit Court of Appeals ruled against the warrantless mass collection of American phone records. In a case brought by the American Civil Liberties Union, the three-judge panel of the 2nd Circuit found that the bulk collection of such records “exceeds the scope of what Congress has authorized” in the Patriot Act.
Writing for a unanimous panel including Judges Robert Sack and Vernon Broderick, Judge Gerard Lynch wrote that the program represented “a monumental shift in our approach to combating terrorism” and that such a shift would demand “a clearer signal from Congress than a recycling of oft used language long held in similar contexts to mean something far narrower.”
The 2nd Circuit did not mince words. “The interpretation that the government asks us to adopt defies any limiting principle. The same rationale that it proffers for the ‘relevance’ of telephone metadata cannot be cabined to such data, and applies equally well to other sets of records,” Lynch wrote. In other words, the logical extension of the government’s case is the ability to access and store nearly any personal record, “including metadata associated with financial records, medical records, and electronic communications (including email and social media information) relating to all Americans.”
At issue is Section 215 of the Patriot Act, which allows the government to collect “any tangible things” that it can prove are “relevant to” a terrorism, investigation. Foreign Intelligence Surveillance Act courts regularly granted the government sanction to collect metadata related to phone calls. Metadata, wrote Lynch, could out “civil, political, or religious affiliations,” among other things, leaving huge numbers of Americans’ privacy at risk.
This program was up for reauthorization in 2011 — but that was before former National Security Agency employee Edward Snowden revealed the extent to which Americans’ information was being swept up and surveilled. Those disclosures, the court noted, change the extent to which Congress could be said to have approved the program: “Congress cannot reasonably be said to have ratified a program of which many members of Congress — and all members of the public — were not aware.”
The case has cast into sharp relief the future of Section 215, which is set to expire June 1. The White House released a statement shortly after the decision, indicating their support for a revision of Section 215. “The president has been clear that he believes we should end the Section 215 bulk telephony metadata program as it currently exists by creating an alternative mechanism to preserve the program’s essential capabilities without the government holding the bulk data,” said National Security Council spokesman Ned Price.
The 2nd Circuit, while not explicitly declaring Section 215 illegal, did signal that the June 1 expiry date would force a clear congressional signal: “If Congress chooses to authorize such a far reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.” Senate Majority Leader Mitch McConnell has offered a reauthorization of Section 215 and taken the forceful position that the provision and others like it are critical for national security. The USA Freedom Act, a bill that more narrowly tailors the NSA’s surveillance capabilities and has wider support among NSA skeptics, drew sharp criticism from McConnell, who argued that it would “neither keep us safe, nor protect our privacy.”
While no determination was made about whether the program violated the Constitution, the ruling itself does represent a major victory for NSA critics — and a significant legal hurdle for the NSA to overcome. The case may now end up in the Supreme Court’s hands, but with two other appeals courts considering similar challenges, the 2nd Circuit’s decision is a critical one in the on-going question of how far is too far in the world of NSA information-gathering.
