U.S. Court Of Appeals Rules NSA Bulk-Collection Program Illegal

Even as Germany has been rocked by allegations that the nation’s foreign-intelligence agency, Bundesnachrichtendienst (BND), worked with the U.S.’s National Security Agency to spy on the communications of government officials and business corporations throughout Europe, a judicial panel of the Second Circuit of the U.S. Court of Appeals ruled yesterday against the NSA’s bulk collection from phone companies of the “metadata” concerning U.S. citizens’ telephone calls, stating that the NSA program “exceeds the scope of what Congress authorized” in Section 215 of the PATRIOT Act.

The Second Circuit’s ruling came in a case brought by the American Civil Liberties Union. Section 215 of the PATRIOT Act is the legal authority the Government has reportedly cited for the program. Section 215 as written provides for investigators to obtain “business records” or “other tangible things” maintained by businesses (such as phone companies) which pertain to a particular terrorism investigation that’s being worked on, much the way search warrants and record-requests obtain evidence in more common criminal investigations. The Government successfully argued to the Foreign Intelligence Surveillance Court (FISC) — which was only hearing the Government’s arguments, in secret — that Section 215 applied to the bulk collection and analysis of metadata to find targets previously unknown to the Government. As an article in National Journal put it, “The government has long argued that the Patriot Act’s language supporting collection of records deemed `relevant’ to a national security investigation justifies mass surveillance.”

But the Second Circuit ruled against that interpretation: “The government takes the position that the metadata collected — a vast amount of which does not contain directly ‘relevant’ information, as the government concedes — are nevertheless ‘relevant’ because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of ‘relevance’ is unprecedented and unwarranted.”

Because Section 215 reaches the end of its statutory life (unless extended by Congress) on June 1, 2015, the Court did not issue any injunctions putting a stop to the NSA program, but merely returned the case to the lower court (which had previously upheld the program) for further consideration. The Court noted that if Congress does not re-authorize Section 215, or authorizes it without expanding it to include the metadata collection program, “there will be no need for prospective relief, since the program will end…” No news accounts of the ruling have indicated (nor has a cursory scan of the 97-page opinion) the legal implications of Congress simply re-authorizing Section 215 as-is, without addressing the metadata collection program either way, although such a simple re-authorization is reportedly what is planned by Senate Majority Leader Mitch McConnell.

There is substantial opposition to a simple reauthorization in the House of Representatives, however, and the Second Circuit’s ruling has immediately stoked the debate.

National Journal quoted the author of the post-9/11 PATRIOT Act, federal Rep. Jim Sensenbrenner (R-Wis.), that the Second Circuit ruling “reaffirms what I’ve been saying since the Snowden leaks came to light. Congress never intended Section 215 to allow bulk collection. This program is illegal and based on a blatant misinterpretation of the law.”

Rep. Justin Amash (R-Mich.) who introduced during the last Congress an amendment to the National Defense Authorization Act (NDAA) to repeal the entire PATRIOT Act, which was nearly voted up, wrote on Facebook concerning the Second Circuit decision, it “makes clear that the executive branch’s interpretation of the statute — interpreting records ‘relevant’ to a terrorism investigation to mean all records everywhere — is ‘unprecedented and unwarranted’…”

Rep. Thomas Massie (R-Ky.) (who reposted Amash’s Facebook remarks on his own website) discussed in an April 30 Cincinnati.com article, the possibility of repealing both Section 215 and the (arguably worse) Section 702 of the FISA Amendments Act of 2008. This is to be done in a bill he introduced with Rep. Mark Pocan, the “Surveillance State Repeal Act” (H.R. 1466). Massie said that “H.R. 1466 would repeal the entire Patriot Act, as well as its companion, the FISA Amendments Act of 2008. I believe the best option is to repeal both of these bills and start over.” Massie argued that such an effort is not futile, recounting Amash’s near-success in 2013, and his own attempt to repeal Section 702 with an amendment in last year’s NDAA, which was voted up 293-123. He said that “The votes on both the Amash and Massie amendments demonstrate that there is overwhelming support for ending mass surveillance, despite what the establishment in both Congress and our federal intelligence agencies claim.”