- A National Security Agency program that collects phone records of millions of Americans is illegal, the Second Circuit Court of Appeals has ruled.
- The government had pointed to a section of the 2001 USA Patriot Act to justify the program. But the court ruled that the surveillance goes far beyond what Congress had authorized.
- The ruling will intensify debate in Congress about whether to reauthorize the Patriot Act provision, which is scheduled to expire at the end of the month.
- Privacy advocates such as the American Civil Liberties Union, which was behind the case, consider the ruling a significant victory.
The government can only take information "relevant to an authorized investigation"
The existence of the NSA's telephone surveillance program was revealed by a 2013 leak from whistleblower Ed Snowden. For close to a decade, the government has required major telephone companies to provide records of every telephone call made in the United States.
The government says the program is authorized by Section 215 of the Patriot Act, which was passed in 2001 in the wake of the 9/11 terrorist attacks. Section 215 allows the government to seek information that is "relevant to an authorized investigation." The Obama administration has argued that the phone records program meets this legal standard. In the government's view, a database of every phone call in the United States provides a wealth of information that helps the government conduct terrorism investigations.
But critics disagree. For example, the author of the Patriot Act, Rep. James Sensenbrenner (R-WI), suggested in 2013 that the government's interpretation of the law makes "a mockery of the legal standard." Critics say Section 215 was designed to limit government surveillance to information that was relevant to particular investigations. Yet the government has used it to justify collecting as much information as possible, on the theory that some of it will eventually prove relevant.
On Thursday, the Second Circuit sided with the critics. While the relevance standard used in Section 215's gives the government broad latitude, the court held, it's not unlimited. The court noted that past court rulings approving broad subpoenas have all been "bounded either by the facts of the investigation or by a finite time limitation." That's in contrast to the completely open-ended character of the NSA's phone records program.
The court held that Section 215 requires the government to show information is relevant to a particular investigation, rather than merely being potentially relevant to terrorism investigations in general. "The government’s approach essentially reads the 'authorized investigation' language out of the statute," the court concluded.
The ball is in Congress's court
Section 215 is scheduled to expire on June 1. Congress is currently debating whether to renew the provision, modify it, or let it expire altogether. The Second Circuit's ruling is likely to strengthen the argument of critics who say the program is unnecessary, intrusive, and illegal.
Sen. Patrick Leahy (D-VT) and Sen. Mike Lee (R-UT) are two of those critics. "The dragnet collection of Americans’ phone records is unnecessary and ineffective," the pair said in a joint statement shortly after the ruling. "Now a federal appellate court has found that the program is illegal. Congress should not reauthorize a bulk collection program that the court has found to violate the law."
The Senators are co-sponsors of the USA FREEDOM Act, a bill that would end the NSA's bulk phone surveillance program and replace it with a system that allows narrower information requests with greater judicial oversight. Companion legislation was approved by the House Judiciary Committee last week.
The bill is opposed by NSA hard-liners such as Senate Majority Leader Mitch McConnell (R-KY), who would prefer to reauthorize Section 215 in its current form. But that position will be weakened by Thursday's court ruling, because even if Congress reauthorizes the provision, the courts might still force the government to shut down its phone records program.