A federal court has decided that the National Security Agency’s bulk, warrantless collection of millions of Americans’ phone records is illegal.
The sweeping decision from the Second Circuit Court of Appeals on Thursday represents a major court victory for opponents of the NSA and comes just as Congress begins a fight over whether to renew the underlying law used to justify the program.
That program “exceeds the scope of what Congress has authorized,” Judge Gerard Lynch wrote on behalf of the three-judge panel.
Additionally, the government’s rationale behind the program represents “a monumental shift in our approach to combating terrorism,” which was not grounded in a clear explanation of the law.
The Second Circuit’s decision provides the most significant legal blow to the NSA operations to date and comes more than a year after a lower court called the program “almost-Orwellian” and likely unconstitutional. The appeals court did not examine the constitutionality of the surveillance program in its ruling on Thursday.
The Second Circuit is just one of the three appeals courts examining challenges to the NSA’s phone records program, which may ultimately land at the Supreme Court.
Section 215 of the Patriot Act authorizes the government to collect “any tangible things” that the government proves are “relevant to” an investigation into suspected terrorists.
With the blessing of the Foreign Intelligence Surveillance Court — the secretive federal court overseeing government intelligence operations — the government has interpreted that mandate to allow it to collect massive amounts of records containing “metadata” about people’s phone calls, including the numbers involved in the call and when it occurred.
While seemingly benign, metadata can reveal “civil, political, or religious affiliations,” Lynch wrote, as well as personal behavior and “intimate relationships.”
But that reading, the court ruled, is far beyond what Congress ever intended.
“If the government is correct, it could use § 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e‐mail and social media information) relating to all Americans,” Lynch wrote.
“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.”
Congress last reviewed the law in 2011, but even then, many lawmakers were not aware of the details of the NSA’s bulk collection practices.
Because most of the details were kept classified, “Congress cannot reasonably be said to have ratified a program of which many members of Congress – and all members of the public – were not aware,” Lynch wrote.
That all changed two years ago, however, following revelations from former NSA contractor Edward Snowden that detailed the expansive nature of the NSA’s surveillance.
In the wake of those leaks, lawmakers, including Rep. Jim SensenbrennerJames SensenbrennerGOP rep defends online privacy rollback: ‘Nobody has got to use the internet’ GOP rep: Funds from Mexican cartels can pay for border wall GOP rep: Trump or Mike Pence will be president for next 4 years MORE (R-Wis.), the original author of the Patriot Act, have made clear they never meant to authorize the NSA’s bulk phone collection program.
With President Obama's backing, they have attempted to rein in the agency by pushing legislation that would end its current collection practices and force it to request from private companies only a narrow set of phone records involved in a case. The debate is simmering in Congress, ahead of Section 215’s scheduled expiration at the end of the month.
National Security Council spokesman Ned Price said the White House is “in the process of evaluating the decision handed down this morning,” but urged Congress to move forward with reform.
“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. “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.”
That debate might be more important than ever now, since the full details of the NSA phone program have been made public.
If Congress chooses to reauthorize the existing law without change — as Senate Majority Leader Mitch McConnellMitch McConnellAACR’s march on Washington Poll: Dems have enthusiasm edge for 2018 The Hill's 12:30 Report MORE (R-Ky.) and others want to do — it would likely be seen as a blessing to the current NSA program, the appeals court indicated.
“If Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously,” Lynch wrote. “Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards.”
Following the ruling, Attorney General Loretta Lynch told lawmakers on a Senate Appropriations subcommittee Thursday that the program has been a “vital tool in our national security arsenal.”
Loretta Lynch said she is “not aware” of any privacy violations that have occurred since President Obama instituted new reforms to the program.
Asked whether the Justice Department plans to appeal the ruling, the attorney general said, “We are reviewing that decision.”
At the same time, she explained that because of time issues surrounding the expiration of the program, the Justice Department is working with Congress to find a way to reauthorize it while protecting privacy and maintaining its efficacy.
Rebecca Shabad contributed to this story, which was updated at 11:43 a.m.