NSA phone records sweep illegal, court rules

WASHINGTON – A key appellate court ruled Thursday that the National Security Agency broke the law with its sweeping collection of telephone call data, in a groundbreaking decision that repudiates the Obama administration and encourages Congress to weigh in.

The unanimous decision by a three-judge panel of the New York-based 2nd U.S. Circuit Court of Appeals is the first to conclude Section 215 of the USA Patriot Act does not authorize the NSA’s bulk collection of so-called “metadata.” It comes just as sharply divided lawmakers try again to rewrite the law.

“This case serves as an example of the increasing complexity of balancing the paramount interest in protecting the security of our nation with the privacy interests of its citizens in a world where surveillance capabilities are vast and where it is difficult if not impossible to avoid exposing a wealth of information about oneself to those surveillance,” Judge Gerard E. Lynch wrote.

The open-ended reach of the NSA’s telephone call data collection effort exceeds the current law, which limits the collection of information to what’s “relevant to an authorized investigation,” according to the court.

“Section 215’s language thus contemplates the specificity of a particular investigation, not the general counterterrorism intelligence efforts of the United States government,” Lynch wrote in the 97-page decision.

Deputy White House press secretary Eric Schultz told reporters aboard Air Force One on Thursday that the White House was still reviewing the decision. But he said President Barack Obama “has been clear that he believes we should end the 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.”

Schultz said the White House was working with Congress and is encouraged by what he said was bipartisan progress on the USA Freedom Act, an updated version of the Patriot Act, which ends the bulk collection of data.

Appearing on Capitol Hill, Attorney General Loretta Lynch called Section 215 a “vital tool in our national security arsenal,” but she said the Justice Department is still reviewing the court’s decision.

Other appeals courts are confronting similar challenges, and the issue appears bound for the Supreme Court unless circumstances change.

More immediately, the ruling could spur Congress. Lawmakers are trying to rewrite the Patriot Act before several provisions of the law, including Section 215, expire June 1.

Next week, the House of Representatives is scheduled to try to approve the USA Freedom Act. Underscoring the political divisions, Senate Majority Leader Mitch McConnell, R-Ky., has countered with a proposal to simply extend the existing Section 215.

“It is Congress’s prerogative, not ours, to resolve the conflict underlying these issues,” noted Judge Robert D. Sack in a concurring opinion.

The American Civil Liberties Union had challenged the bulk collection program on both statutory and broader constitutional grounds. The three-judge panel limited its ruling to the statute and did not opine on potential constitutional violations.

“This decision is a resounding victory for the rule of law,” said ACLU staff attorney Alex Abdo. “For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority.”

The collection program does not explicitly capture the content of telephone calls. Instead, the so-called metadata includes information such as the length of a call, the phone number from which the call was made, and the phone number called.

But even without directly tapping phone calls, metadata collection can still expose “a startling amount of information” about callers, Judge Lynch observed. He cited the inferences that can be drawn from a call traced to a sexual abuse or addiction hotline, or to a particular store or organization.

“Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual’s social status, or whether and when he or she is involved in intimate relationships,” Lynch wrote.

The program was established by May 2006 but did not become publicly known until June 2013 through news reports based on leaks from former NSA contractor Edward Snowden.

The revelations “generated considerable public attention and concern about the intrusion of government into private matters,” noted Judge Lynch, who was appointed in 2009 by Obama. He was joined in the decision by Sack, appointed by President Bill Clinton, and Judge Vernon S. Broderick, a trial-level judge who was sitting in on the case and who is an Obama appointee.

Passed in the nerve-wracking weeks following the Sept. 11, 2001, terrorist attacks, the USA Patriot Act included myriad provisions. The law’s Section 215, which has since been renewed seven times, empowers the FBI to secure secret court orders compelling “production of any tangible things” as part of the government’s effort to “protect against international terrorism or clandestine intelligence activities.”

Using the law, the FBI has obtained an unbroken string of secret court orders commanding Verizon and, it is widely believed, other telephone service providers to supply call data. The NSA then stores the information, allowing analysts to query it.

Citing how “the September 11th terrorist attacks revealed, in the starkest terms just how dangerous and interconnected the world is,” a New York-based trial judge in December 2013 upheld the program.

Last year, though, in a nonbinding report, the Privacy and Civil Liberties Oversight Board concluded Section 215 “does not provide an adequate legal basis to support” the bulk collection of phone data.

The Obama administration argued the ACLU could not sue because the organization could not show harm. The three-judge appellate panel countered Thursday that the “collection, and maintenance in a government database, of records relating” to the ACLU added up to potential injury.

Substantively, the appellate court noted the “staggering” amount of information being collected, stressing that it “dwarfed” the volume collected through conventional search warrants and subpoenas.

“The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects,” Judge Lynch observed. “They extend to every record that exists, and indeed to records that do not yet exist.”