US spy agency’s collection of phone calls data ruled illegal
A US spying programme that collects millions of Americans’ phone records is illegal, a federal appeals court ruled on Friday, putting pressure on Congress to quickly decide whether to replace or end the controversial antiterrorism surveillance.
Ruling on a programme revealed by former government security contractor Edward Snowden, the 2nd US Circuit Court of Appeals in Manhattan said the Patriot Act did not authorise the National Security Agency to collect Americans’ calling records in bulk.
Circuit Judge Gerard Lynch wrote for a three-judge panel that Section 215, which addresses the FBI’s ability to gather business records, could not be interpreted to have permitted the NSA to collect a ‘‘staggering’’ amount of phone records, contrary to claims by the Bush and Obama administrations.
‘‘Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,’’ Lynch wrote in a 97-page decision.
‘‘We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate.’’
The appeals court did not rule on whether the surveillance violated the US Constitution.
It also declined to halt the programme, noting that parts of the Patriot Act including Section 215 expire on June 1.
Lynch said it was ‘‘prudent’’ to give Congress a chance to decide what surveillance is permissible, given the national security interests at stake.
Enacted after the September 11, 2001 attacks, the Patriot Act gives the government broad tools to investigate terrorism.
Friday’s decision voided a December 2013 ruling in which US District Judge William Pauley in Manhattan found the NSA programme lawful. The appeals court sent the case back to him for further review.
Snowden, a former NSA contractor who lives as a fugitive in Russia, in June 2013 exposed the agency’s collection of ‘‘bulk telephony metadata’’. Those data includes the existence and duration of calls made, but not the content of conversations.
US Attorney General Loretta Lynch said at a Senate budget hearing that NSA data collection was a ‘‘vital tool in our national security arsenal’’, and that she was unaware of privacy violations under its existing programme.
The 2nd Circuit is the first federal appeals court to rule on the NSA program’s legality. Courts in Washington, DC and California are also weighing the matter.
While the government could appeal the decision, it will likely wait for Congress.
If Congress revamps the NSA programme, then courts may need to review what it does. And if Congress reauthorises Section 215, there could be further litigation that may ultimately require the Supreme Court’s attention.
Scott Vernick, chair of the privacy and data security practice at Fox Rothschild in Philadelphia, said Congress may struggle to reach a consensus given how ‘‘the pendulum in this country is swinging toward privacy’’.
Ned Price, a spokesman for the White House’s National Security Council, said President Barack Obama wanted to end the NSA programme, and was encouraged by the ‘‘good progress’’ on Capitol Hill to find an alternative.
Last week, the House Judiciary Committee voted 25-2 to end the bulk collection of telephone data through the USA Freedom Act. The bill is expected to pass the full House, and the White House has signalled support for it.
While a similar bipartisan bill is pending in the Senate, Majority Leader Mitch McConnell and Intelligence Committee chair Richard Burr, both Republicans, have proposed extending Section 215 and other parts of the Patriot Act through to 2020.