Second Circuit rules NSA bulk collection of phone records is illegal

The wheels of justice grind slowly, but they do grind. Today the Second Circuit Court of Appeals  held that the NSA’s bulk collection of telephone records is illegal. It is the first opinion from a Court of Appeals. And it comes at a time when Congress is currently considering an extension of the USA Patriot Act, set to expire on June 1, or to replace it with the USA Freedom Act.

The New York Times reports N.S.A. Phone Data Collection Illegal, Appeals Court Rules:

A federal appeals court in New York on Thursday ruled that the once-secret National Security Agency program that is systematically collecting Americans’ phone records in bulk is illegal. The decision comes as a fight in Congress is intensifying over whether to end and replace the program, or to extend it without changes.

In a 97-page ruling, a three-judge panel for the United States Court of Appeals for the Second Circuit [unanimously] held that a provision of the USA Patriot Act known as Section 215 cannot be legitimately interpreted to allow the bulk collection of domestic calling records.

The ruling was certain to increase the tension that has been building in Congress as the provision of the act that has been cited to justify the bulk data collection program nears expiration. It will expire in June unless lawmakers pass a bill to extend it.

Thursday’s ruling did not come with any injunction ordering the program to cease, and it is not clear that anything else will happen in the judicial system before Congress has to make a decision about the expiring law.

It is the first time a higher-level court in the regular judicial system has reviewed the program.

The data collection had repeatedly been approved in secret by judges serving on the Foreign Intelligence Surveillance Court, known as the FISA court, which oversees national security surveillance. Those judges, who hear arguments only from the government, were willing to accept an interpretation of Section 215 that the appeals court on Thursday rejected.

The court, in a unanimous ruling written by Judge Gerard E. Lynch, held that Section 215 “cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.” It declared the program illegal, saying, “We do so comfortably in the full understanding that if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.”

The House appears ready to pass a bill next week that would end the government’s bulk collection of phone records and replace it with a new program that would preserve the ability to analyze links between callers to hunt for terrorists but keep the bulk records in the hands of phone companies. That proposal however, has faced resistance from Senator Mitch McConnell, Republican of Kentucky, the Senate majority leader.

A similar bill died in the Senate in November after national-security hawks said it would be a gift to terrorists and Mr. McConnell urged Republicans to block an up-or-down vote on it with a filibuster. Mr. McConnell has urged a “clean extension” of Section 215 this time so the program can continue in its present form, and he said on Tuesday that he thought that was the “most likely” outcome.

Alexander Abdo, who argued the case for the American Civil Liberties Union, praised the ruling.

“This decision is a victory for the rule of law that should spur Congress into action,” he said. “Modern technology has created tremendous opportunity, but it has also enabled surveillance on a scale inconsistent with free society. Today’s decision is an opportunity to redouble the defense of the constitutional principles that have made our nation what it is today.”

The appeals court sent the matter back to a Federal District Court judge to decide what to do next. The government could also appeal the ruling to the full appeals court, or to the Supreme Court. Parallel cases are pending before two other appeals courts that have not yet ruled.

Lawmakers who helped draft the bill that the House is about to pass, known as the USA Freedom Act, seized on the ruling as a triumph. Among them, Senators Patrick J. Leahy, Democrat of Vermont, and Mike Lee, Republican of Utah, said in a joint statement: “Congress should not reauthorize a bulk collection program that the court has found to violate the law. We will not consent to any extension of this program.”

But Mr. McConnell and Senator Richard M. Burr of North Carolina, chairman of the Senate Intelligence Committee, took to the Senate floor and gave no ground. Mr. McConnell blasted the House bill as “an untested, untried and more cumbersome system” that would neither “keep us safe or protect our privacy.”

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Thursday’s ruling creates a series of political and legal difficulties for keeping the program going in the interim.

The present FISA court order authorizing the bulk phone records program, issued in February by Judge James E. Boasberg of Federal District Court, expires on June 1. To bridge any gap between the existing program and a new one, the Obama administration would have to ask the FISA court to reauthorize the program for another round and a FISA judge would have to agree to do so, notwithstanding the Second Circuit’s ruling that Section 215 gives the court no authority to order phone companies to turn over customer records in bulk.

The FISA court is not directly subject to the Second Circuit’s authority — it has its own appeals court — but when Judge Boasberg issued the last order for the phone program he noted the existence of the litigation challenging the legal interpretation the FISA court had adopted, as well as the legislation pending in Congress. He required the government to file any application to renew the program again by May 22.

In a statement, Edward Price, a spokesman for the National Security Council, said the administration was still evaluating the ruling but reiterated that President Obama’s support for legislation that would transform the program is in line with the USA Freedom Act.

“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,” he said.

The bulk phone records program traces back to October 2001. After the Sept. 11 attacks, President George W. Bush secretly authorized the N.S.A. to begin a group of surveillance and data-collection programs, without obeying statutory limits, for the purpose of hunting for hidden terrorist cells.

In 2006, the administration persuaded a Federal District Court judge serving on the FISA Court, Malcolm J. Howard, to issue the first of many court orders blessing the phone records component, based on the idea that Section 215 could be interpreted as authorizing it.

Many other judges serving on the FISA court have subsequently renewed the program at roughly 90-day intervals. It came to light in June 2013 as part of the leaks by the intelligence contractor Edward J. Snowden, setting off a debate both about individual privacy rights and about whether the FISA court’s secret legal interpretation was founded.

Multiple lawsuits were filed in different districts challenging the program as both illegal under Section 215 and as unconstitutional. Different district court judges reached opposing conclusions about its legality.

Thursday’s ruling, in a case brought by the American Civil Liberties Union, is the first time an appeals court has weighed in. The ruling did not address the A.C.L.U.’s separate argument that bulk collection of records about Americans – regardless of the claimed legal basis – is unconstitutional.

In 2006, the administration persuaded a Federal District Court judge serving on the FISA Court, Malcolm J. Howard, to issue the first of many court orders blessing the phone records component, based on the idea that Section 215 could be interpreted as authorizing it.

Many other judges serving on the FISA court have subsequently renewed the program at roughly 90-day intervals. It came to light in June 2013 as part of the leaks by the intelligence contractor Edward J. Snowden, setting off a debate both about individual privacy rights and about whether the FISA court’s secret legal interpretation was founded.

Multiple lawsuits were filed in different districts challenging the program as both illegal under Section 215 and as unconstitutional. Different district court judges reached opposing conclusions about its legality.

Thursday’s ruling, in a case brought by the American Civil Liberties Union, is the first time an appeals court has weighed in. The ruling did not address the A.C.L.U.’s separate argument that bulk collection of records about Americans – regardless of the claimed legal basis – is unconstitutional.

This is unfortunate. The Court should have addressed the constitutional claim.