NSA Bulk Phone Records Program Ruled Unlawful

Why Patriot Act doesn't permit gathering sensitive information on this scale.

— -- In a blow to the government’s phone-records collection program, a federal appeals court unanimously ruled today that the NSA’s surveillance program is overbroad, and unlawful.

The focus of the court’s decision was the scale of the phone-records collection by the government. The 2nd U.S. Circuit Court of Appeals in New York held that the Patriot Act does not permit the gathering of Americans’ sensitive information on such a large scale.

Section 215 of the Patriot Act is the statute the government has been relying on to justify the bulk collection of phone records.

“The statutes to which the government points have never been interpreted to authorized anything approaching the breadth of the sweeping surveillance at issue here,” Judge Gerard Lynch wrote for the three-judge panel. “The sheer volume of information sought is staggering,” the court said, and includes “every record that exists, and indeed to records that do not yet exist.”

The NSA now collects and holds records of phone calls made and received, stockpiling them for possible use in investigating terrorism threats. The vast majority of this “metadata,” according to the government, is never closely examined for its content, unless a record is linked to a terror threat or terrorism case.

The case was filed by the American Civil Liberties Union in June 2013, immediately after NSA whistleblower Edward Snowden disclosed the existence of the program. In a news release after the ruling, ACLU attorney Alex Abdo said, “This decision is a resounding victory for the rule of law. For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority.”

After the NSA collection program was disclosed, President Obama proposed that, in order to insure privacy, an independent third party should hold the phone records.

Asked about the court’s ruling at a Senate subcommittee hearing today, Attorney General Loretta Lynch said Section 215 has been a “vital tool in our national security arsenal,” but the department has been operating under new directive from the president with view to modify program to keep efficacy -- but still protect privacy. She added that the Justice Department was reviewing the court’s decision and had not decided whether it will appeal.

She also pointed out the Justice Department and the Obama administration are working with Congress to possibly modify and reauthorize the Patriot Act.

National Security Council spokesman Edward Price said, “We are in the process of evaluating the decision handed down this morning. 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.”

The appeals court did not order a halt to the data collection, but deferred to Congress, which is now considering the reauthorization of Section 215 and the Patriot Act.

"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 court wrote. A federal court in the Southern District of New York previously dismissed the ACLU’s case, finding the government bulk telephony metadata collection to be lawful, but left the question of whether the program should be continued as something to be worked out between Congress and the executive branch. That court cited examples of specific cases in which NSA collection led to the uncovering and thwarting of terror plots against the New York City subway system and the New York Stock Exchange.