Constitutional Law

2nd Circuit rules NSA phone surveillance program is not authorized by Patriot Act

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A sweeping National Security Agency program that collects and stores so-called metadata for nearly all United States phone calls in a searchable database is not authorized by the Patriot Act, a federal appeals court ruled Thursday.

Section 215 of the Patriot Act “cannot bear the weight the government asks us to assign to it, and …does not authorize the telephone metadata program,’’ the New York-based 2nd U.S. Circuit Court of Appeals said in its written opinion (PDF), unpersuaded by the government’s argument that the phone numbers and date and time information collected are relevant to possible future investigations. The opinion decides a lawsuit brought by the American Civil Liberties Union as a lead plaintiff and vacates a trial court’s decision upholding the NSA program.

However, the law is about to expire, so the appellate panel didn’t issue an order calling a halt to the metadata collection, saying that the issue would soon be dealt with when Congress decides whether to re-enact a revised version of the law, the Wall Street Journal (sub. req.) reports. The court did not reach constitutional issues raised by the ACLU because it found the NSA program was not authorized by statute.

As interpreted by the government, the telephone-surveillance program “defies any limiting principle,” the 2nd Circuit wrote. “If the government is correct, it could use Section 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 email and social media information) relating to all Americans.

‘Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism.But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.”

Bloomberg, the Guardian, The Hill, the New York Times (reg. req.) and USA Today also have stories.

The NSA program was revealed by former NSA contractor Edward Snowden, who is now in exile in Russia and subject to prosecution in the U.S. if he returns here.

Related coverage:

ABAJournal.com: “Surveillance court releases new opinion upholding NSA collection of phone data”

ABAJournal.com: “NSA phone records collection program is illegal and ineffective, government oversight board says”

See also:

ABA Journal: “NSA surveillance policies raise questions about the viability of the attorney-client privilege”

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