Appeals court rules NSA’s phone data sweep illegal
Appeals court says secret data grabs overstep law’s intention
Judges say the intelligence agency far exceeded its authority by collecting phone data of millions who aren’t investigation targets.
WASHINGTON — The National Security Agency does not have legal authority to secretly collect and store data on all U.S. telephone calls, a federal appeals court ruled Thursday, calling the classified surveillance program “an unprecedented contraction of the privacy expectations of all Americans.”
The unanimous decision by the U.S. Court of Appeals for the 2nd Circuit, based in New York, said the intelligence agency far exceeded its legal powers in collecting so-called metadata on calls by hundreds of millions of Americans who are not specific targets of counterterrorism or espionage investigations.
The court’s sharp rejection of the controversial NSA program, which was first disclosed publicly in 2013 in documents leaked by former NSA contractor Edward Snowden, puts new pressure on Congress to reform the program. “This is a huge step for individual Americans’ rights,” said Sen. Ron Wyden, D-Ore., an outspoken opponent of the program.
The decision has no immediate effect, however, since the three-judge panel agreed to let Congress decide whether to end or replace it in coming weeks. The provision in the USA Patriot Act that advocates say authorizes government collection of phone records will expire June 1 unless Congress votes to extend it.
A bipartisan bill in the House would amend the NSA program, and the White House has called for leaving call records with the nation’s telephone companies.
In the Senate, Majority Leader Mitch McConnell of Kentucky has pushed a plan to reauthorize the current program but has faced opposition in both parties.
The White House said Thursday it was studying the court ruling. The administration could appeal to the Supreme Court, but if Congress resolves the issue, further legal proceedings might be moot.
President Barack Obama “has been clear that he believes we should end (the program) as it currently exists by creating an alternative mechanism to preserve the program’s essential capabilities without the government holding the bulk data,” Ned Price, a spokesman for the National Security Council, said in a statement.
The 97-page ruling, which overturns a lower court decision, comes from the first high-level court in the regular judicial system to review the NSA program.
Initially authorized by the George W. Bush administration after the Sept. 11, 2001, attacks, the bulk collection of domestic phone data has been repeatedly approved since May 2006 by the Foreign Intelligence Surveillance Court, which meets in secret and issues classified rulings.
The NSA has secretly collected telephone numbers, phone call times, duration and other data, but not the actual conversations, for a large percentage of virtually every call made in the U.S and from overseas under the disputed provision of the law, known as Section 215.
The collection includes virtually all landline calls and some made from cellphones.
The three-judge panel said Thursday there is no evidence Congress meant to give the NSA such broad power when it passed Section 215, which allows the government to collect business records that are “relevant to an authorized investigation,” the decision says.
“The overwhelming bulk of the metadata ... concerns individuals who are not targets of an investigation or suspected of engaging in any crime whatsoever, and who are not even suspected of having any contacts with any such targets or suspects,” it reads.
The government argued that all call records are “relevant” because investigators need a complete history to search for phone numbers that terror sus- pects may have called.
NSA officials repeatedly have likened the searches to the proverbial needle in a haystack, saying they need the full haystack to search for the needle.
But the court found the vacuuming of Americans’ phone records for potential use in investigations violates long-accepted judicial procedures that require law enforcement agencies to show a court evidence that the target of an inquiry is engaged in specific criminal activity before surveillance is permitted.
If the government view prevailed, the judges wrote, it could “collect and store in bulk any other existing metadata available in the private sector, including metadata associated with financial records, medical records, and electronic communications … of all Americans.”
Republican leaders in the Senate have generally supported the NSA program, and several continued to do so Thursday.
Sen. Marco Rubio, R-Fla., a contender for the GOP presidential nomination, said “not one single documented case” of abuse of the NSA program had been found.
But Sen. Rand Paul, RKy., who also is seeking the Republican nomination, applauded the ruling as “a monumental decision for all lovers of liberty.”
The American Civil Liberties Union, which brought the suit on behalf of a group of phone company customers, called the decision “a resounding victory for the rule of law.”