SurveillanceCourt rules NSA bulk metadata collection exceeded Patriot Act’s Section 215
On Thursday, a three-judge panel from the New York-based 2nd Circuit U.S. Court of Appeals overturned an earlier ruling by Judge William Pauley, which found that the controversial NSA bulk collection of domestic phone metadata was legal and could not be subject to judicial review. That section, which the appeals court ruled the NSA program exceeded, will expire on 1 June. The judges did not address the issue of whether the NSA program violated the Constitution, instead waiting for Congress to decide how to proceed after the program’s 1 June expiration.
On Thursday, a three-judge panel from the New York-based 2nd Circuit U.S. Court of Appeals overturned an earlier ruling by Judge William Pauley, which found that the controversial NSA bulk collection of domestic phone metadata was legal and could not be subject to judicial review. Circuit judges Robert Sack and Gerard Lynch and district judge Vernon Broderick ruled that the collection program is not authorized by Congress, quickly sparking more flames in the ongoing debate over the reauthorization of Section 215 of the Patriot Act.
That section, which the appeals court ruled the NSA program exceeded, will expire on 1 June. The judges did not address the issue of whether the NSA program violated the Constitution, instead waiting for Congress to decide how to proceed after the program’s 1 June expiration.
“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,” the judges ruled.
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See also:
FISA court reauthorizes NSA’s bulk metadata collection until 1 June, 3 March 2015
Federal judge: NSA’s collection program violates Constitution, 17 December 2013
Judge rules NSA’s collection of telephony metadata is legal, 30 December 2013
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Majority Leader Senator Mitch McConnell (R-Kentucky) is pushing for reauthorization of Section 215, without modification, but the judges noted that “the text of section 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.”
“Such a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft‐used language long held in similar contexts to mean something far narrower,” the judges added. “We conclude that to allow the government to collect phone records only because they may become relevant to a possible authorized investigation in the future fails even the permissive ‘relevance’ test.”
The Guardian reports that Senator Rand Paul (R-Kentucky), who opposes the NSA program, was pleased with the court ruling, tweeting “The phone records of law abiding citizens are none of the NSA’s business! Pleased with the ruling this morning.” Other senators have urged McConnell to allow a vote on the USA Freedom Act rather than a reauthorization of the soon-to-expire Section 215. “Congress should not reauthorize a bulk collection program that the court has found to violate the law,” read a joint statement from Senator Patrick Leahy (D-Vermont) and Mike Lee (R-Utah). “We will not consent to any extension of this program … We urge the majority leader to bring the USA Freedom Act up for a vote next week after the House passes it.”
The White House has supported an overhaul of the NSA program, favoring a plan closer to the USA Freedom Act, which stores domestic phone metadata in the servers of telecommunications firms and grants the NSA access when the Foreign Intelligence Surveillance Court issue an order, and when there is a “reasonable, articulable suspicion” that a “specific selection term” used to request data is associated with international terrorism.
“We are in the process of evaluating the decision handed down this morning,” assistant White House press secretary Ned Price told theGuardian. “Without commenting on the ruling today, 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.”
“We continue to work closely with members of Congress from both parties to do just that, and we have been encouraged by good progress on bipartisan, bicameral legislation that would implement these important reforms,” added Price.
The American Civil Liberties Union (ACLU), which opposes the NSA’s domestic surveillance program, believes the court ruling will force Congress to take a tougher stance on the program. “The current reform proposals from Congress look anemic in light of the serious issues raised by the second circuit,” said ACLU director, Anthony Romero. “Congress needs to up its reform game if it’s going to address the court’s concerns.”
McConnell appears unmoved by the court’s ruling and skeptical of alternative plans to Section 215. “The USA Freedom Act would replace Section 215 with an untested, untried and more cumbersome system,” he said. “It would not end bulk collection of call data. Instead, it would have untrained, corporate employees with uncertain supervision and protocols do the collecting. So it switches this responsibility from the NSA, with total oversight, to corporate employees with uncertain supervision and protocols.”
