Appeals court: NSA’s bulk collection of phone data illegal | McClatchy Washington Bureau

In a blow to the Obama administration’s surveillance operations, a key appellate court on Thursday ruled federal law does not authorize the National Security Agency’s controversial bulk collection of telephone ‘metadata.’

The unanimous decision by a three-judge panel of the 2nd Circuit Court of Appeals reversed a trial judge and concluded the mass collection was not authorized by Section 215 of the USA PATRIOT Act.

“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 vast, open-ended reach of the NSA’s collection effort goes well beyond the law’s stated limitation to allowing collection of only information that’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.

The 97-page decision by the New York-based panel is the first time an appeals court has ruled on the legality of the NSA’s bulk collection program. Other appeals courts are confronting similar challenges, and the issue appears bound for the Supreme Court unless circumstances change.

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

“The statutory issues on which we rest our decision could become moot, at least as far as the future of the telephone metadata program is concerned, and the constitutional issues...radically altered, by events that will occur in a short time frame,” Lynch observed.

The court let the program continue temporarily, effectively giving Congress a chance to complete writing the surveillance law.

The ruling is a victory for the American Civil Liberties Union, which had challenged the bulk collection program on both statutory and broader constitutional grounds. The three court limited its ruling to the statute and did not reach a conclusion about 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.”

Republican Sen. Rand Paul of Kentucky, now seeking his party’s presidential nomination, likewise praised the “monumental decision for all lovers of liberty.” Two other long-time civil libertarians, Senate Intelligence Committee members Sen. Ron Wyden, D-Ore., and Sen. Martin Heinrich, D-N.M., cited the ruling as reason to “end the mass surveillance of Americans.”

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, 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 became publicly known in June 2013, through news reports based on leaks from former NSA contractor Edward Snowden.

“The revelation of this program has generated considerable public attention and concern about the intrusion of government into private matters,” noted Lynch, who was appointed to the appellate bench in 2009 by President Barack Obama.

Lynch was joined in the decision by Judge Robert D. Sack, appointed to the bench by President Bill Clinton, and Judge Vernon S. Broderick, a trial-level judge appointed by Obama.

Passed in the frantic weeks following the Sept. 11, 2001 terrorist attacks, the USA PATRIOT Act included myriad national security 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 Foreign Intelligence Surveillance Court orders commanding Verizon and other telephone service providers to turn over massive amounts of call data. The NSA then stores the data, allowing analysts to query it during investigations.

Last year, in a non-binding decision, the Privacy and Civil Liberties Oversight Board had likewise concluded Section 215 “does not provide an adequate legal basis to support” the bulk collection of phone data.

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 disagreed in December 2013 and ruled the bulk collection to be legal.

The Obama administration argued that the ACLU could not even challenge the program, in part because the organization could not show harm. The three-judge appellate panel countered that the challengers “surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them.”

Substantively, the appellate court noted the “staggering” amount of information being collected under the surveillance program, 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,” Lynch observed. “They extend to every record that exists, and indeed to records that do not yet exist.”

Lesley Clark also contributed to this report

.