E.L.D. Cornerstone.  Life in words & pictures

May 7, 2015

A federal appeals court ruled Thursday the National Security Agency’s controversial collection of millions of Americans’ phone records isn’t authorized by the Patriot Act, as the Bush and Obama administrations have long maintained.

The NSA has used the Patriot Act to justify collecting records of nearly every call made in the U.S. and entering them into a database to search for possible contacts among terrorism suspects.

The scope of the program was revealed when former NSA contractor Edward Snowden leaked documents describing the program, triggering a national debate over the extent of the data collection.

The ruling by the three-judge panel in New York comes at a delicate point in the national debate over government surveillance, as Section 215 of the Patriot Act is due to expire next month and lawmakers are haggling about whether to renew it, modify it, or let it lapse.

The court’s ruling was in response to a lawsuit by the American Civil Liberties Union arguing the data collection should be stopped because it violates Americans’ privacy rights. A lower court judge ruled the program was constitutional, and the civil liberties group appealed, leading to Thursday’s decision.

”The text of (Section 215) cannot bear the weight the government asks us to assign to it, and...does not authorize the telephone metadata program,’’ the court wrote.

The court declined to address the issue of whether the program violates Americans’ rights, because, they found, it was never properly authorized by existing law.

The judges didn't order the collection to stop, noting that the legislative debate and the looming expiration of Section 215 will force action on the issue one way or another. The judges also note that if Congress decides to approve some version of the phone data collection program in coming days, then the privacy issue could be revisited in court.

The panel sent the case back to the lower court judge for further review based on the appeals court findings.

The legal fight will continue and the U.S. can appeal the decision to the U.S. Supreme Court. But the expiration of Section 215 on June 1 essentially puts the fate of the program in the hands of Congress in the short-term.

It is unclear what the appellate court ruling will mean for Congress, which has been scrambling in recent days to decide what to do with Section 215.

The House Judiciary Committee passed a bill 25-2 last week that would end the bulk collection of telephone and email records under Section 215, instead requiring the government to obtain the records on a case-by-case basis. The White House has signaled support for the measure.

But a number of Senate Republicans have expressed reservations with the curbs, saying it could threaten national security. Senate Majority Leader Mitch McConnell (R., Ky.) has suggested there isn’t enough time left in the congressional schedule to debate a way to replace Section 215 before it expires, and he said several days ago that he is likely to pursue a temporary extension of the program with no changes.

It is unclear if such a measure would pass the House or the Senate, in part because of broad opposition to the program.

Recently retired NSA Director Gen. Keith Alexander last week acknowledged that some of the agency’s practices were controversial but he said he worried ending certain programs because of a public backlash could be dangerous.

“I am concerned if we throw out some of these programs, now we are at risk,” he said at an event hosted by the Aspen Institute. “We’re stupid, I got it, in the press, but we shouldn’t put American people at risk.”

The court’s 97-page decision is the most significant legal ruling on the program, begun in the aftermath of the 2001 terror attacks. The program was put under the authority of the Foreign Intelligence Surveillance Court in 2006 as the Bush administration sought to give it firmer legal footing.

The ruling, while ducking the privacy concerns raised by the ACLU, also cast aside a basic legal premise upon which the NSA’s phone records collection—as well as its collection of other records—is based.

For years, government lawyers have maintained they are allowed to collect bulk data because, while such records aren’t connected to any terror suspects, they could need to search through those records later to find connections between suspects.

This argument—that bulk records are inherently relevant to terrorism probes —has been a central premise of the NSA.

“Such an expansive concept of ‘relevance’ is unprecedented and unwarranted,’’ the judges wrote.

Privacy groups continued to try to learn more about the collection and stop it, but their efforts were largely frustrated until Mr. Snowden released documents detailing it and other intelligence collection programs.

Those details gave new momentum to privacy advocates, and some lawmakers, including those who helped write the Patriot Act, insisted they’d never meant to authorize bulk spying on innocent Americans.