NSA's Telephone Data Collection Ruled Illegal

     The government’s supersecret National Security Agency (NSA) has been illegally collecting and storing records of your telephone calls, emails, and texts at least since 2006 under the authority of a law Congress passed but never intended to be used that broadly.

      That is the strongly-worded conclusion of a federal appeals court decision that found the NSA’s so-called telephone metadata collection program illegal as a statutory matter and at least problematic in constitutional terms.

     The 110-page ruling by the New York-based Second U.S. Circuit Court of Appeals in ACLU v. Clapper might be called the Edward Snowden Whistleblower Decision in honor of the disclosure of the previously secret program by the one-time NSA apparatchik. Snowden, now in self-exile in Russia, unmasked himself in June 2013 as the source for stories in The Guardian and The Washington Post that described the program and the previously secret ruling upholding it by the Foreign Intelligence Surveillance Court (FISC). (See “A Needed Debate on Surveillance Programs,” Jost on Justice, June 16, 2013).

     The American Civil Liberties Union went to federal court promptly to challenge the program as a mass invasion of privacy never authorized by Congress nor permitted under the Fourth Amendment’s prohibition against unreasonable searches and seizures. James Clapper is director of national intelligence. It is a measure of the importance of the program to the national security establishment that government lawyers have vigorously defended it in court even as President Obama called for legislative fine-tuning.

     The program has continued unabated, with stout defense by Clapper and others, even as two legal challenges moved through federal courts: one in New York, the other in the District of Columbia. In New York, U.S. District Court Judge William Pauley ruled the ACLU had no standing to bring the suit; in the Washington case, Klayman v. Obama, Judge Richard Leon found legal standing for the suit and went on to rule the program illegal.

     The Second Circuit panel, consisting of three Democratic-appointed judges, heard arguments in September; at the District of Columbia Circuit, a panel of three Republican-appointed judges heard arguments in November. But both courts may be in the position of closing the barn door (or not) after the horse got out. The program is due to sunset on June 1, and opposition by libertarian-minded lawmakers on the left and right make it unlikely the program will be reauthorized in its present form.

     On that basis, Orin Kerr, a Fourth Amendment expert at George Washington University Law School and Volokh Conspiracy blogger, discounts the decision as “mostly symbolic.” As symbolism, however, the Second Circuit decision teaches an important lesson about the need for checks-and-balances in wartime — in this case, the so-called “war against terror.”

     The NSA instituted the program under the supposed authority of the PATRIOT Act, the omnibus anti-terrorism statute that Congress passed within weeks of al Qaeda’s Sept. 11, 2001, attacks on the United States. Civil liberties groups and some Democratic lawmakers raised questions about the breadth of the provisions, but Congress, President George W. Bush, and the general public were in no mood to listen.

     Still, the Second Circuit’s decision makes clear that hardly anyone outside the intelligence establishment, the Foreign Intelligence Surveillance Court, and some members of the intelligence oversight committees understood how far the NSA had taken the law. In its operative section 215, the act authorizes the government to obtain any “tangible thing” based on a showing that it was “relevant to an authorized investigation (other than a threat assessment)” conducted under guidelines issued by the attorney general (emphasis added).

     The NSA proceeded to get all the major telecommunications carriers to turn over records in bulk — so-called telephony metadata. Once the program was disclosed, the agency and its defenders explained that agents were not listening to calls or reading messages, only collecting and storing the records of the calls and messages to look later for possible patterns of possible terrorist activities.

     The three-judge panel, including two former federal prosecutors, would have none of it. To begin, the court noted a study in Science that showed one could identify a telecommunications user 90 percent of the time with as few as four data points (e.g., credit card transactions). So much for anonymity on the ’Net.

     Writing for the panel, Judge Gerard E. Lynch then parsed the statute and rejected the government’s proposed interpretations of the critical phrases. Lynch conceded that relevance can be defined broadly in grand jury investigations, but the “all-encompassing” definition urged in this case he found “unprecedented and unwarranted.” And the mass collection and storage of information, he said, “essentially reads the ‘authorized investigation’ language out of the statute.”

     Oddly, the court declined to issue a preliminary injunction to force the government to suspend the program immediately. Lynch noted the scheduled expiration of the program and the uncertainty on Capitol Hill about reauthorization. Meanwhile, the D.C. Circuit panel, with three strongly conservative judges, seems quite likely to rule the other way, setting the stage for the Supreme Court to resolve the issue unless the whole dispute is deemed moot.

     Today, however, the ruling produced a rare outbreak of bipartisanship on Capitol Hill. The top two Republicans and top two Democrats on the House Judiciary Committee joined in praising the decision. “The bulk collection of data,” the lawmakers said, “is not authorized under the law and is not accepted by the American people.”