Appeals Court Rules NSA Metadata Collection Not Authorized by Section 215

The United States Court of Appeals for the Second Circuit ruled Thursday that the Patriot Act does not authorize the bulk collection of phone records by the NSA.

The ruling undermines the key foundation upon which the federal government’s phone metadata surveillance program is built, Section 215 of the Patriot Act. That program was the first NSA surveillance program disclosed by the documents Edward Snowden took from the agency a couple of years ago. The revelation came in June 2013, and was the first in a long line of surveillance tools, programs, and technologies disclosed by the publication of the Snowden documents.

The court’s decision is the result of an appeal by several groups, including the ACLU and the EFF, of a decision by the U.S. District Court for the Southern District of New York regarding the legality of the metadata program.

“The district court held that § 215 of the PATRIOT Act impliedly precludes judicial review; that plaintiffs‐ appellants’ statutory claims regarding the scope of § 215 would in any event fail on the merits; and that § 215 does not violate the Fourth or First Amendments to the United States Constitution. We disagree in part, and hold that § 215 and the statutory scheme to which it relates do not preclude judicial review, and that the bulk telephone metadata program is not authorized by § 215,” the decision, handed down Thursday, says.

This ruling is the result of a suit filed by the civil liberties’ groups along with current and former Verizon customers. Verizon was the telecom identified in the Foreign Intelligence Surveillance Court order taken by Snowden and published in June 2013. The government has not said that Verizon was the only company involved in this metadata collection program.

As part of its argument in the suit for the continuation of Section 215 metadata collection, the federal government says that the statute precludes judicial review of the orders for collection. The appeals court did not accept that line of reasoning.

“In short, the government relies on bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence in an effort to find an implied revocation of the APA’s authorization of challenges to government actions. That is not enough to overcome the strong presumption of the general command of the APA against such implied preclusion.  Congress, of course, has the ability to limit the remedies available under the APA; it has only to say so,” the ruling says.

“But it has said no such thing here.  We should be cautious in inferring legislative action from legislative inaction, or inferring a Congressional command from Congressional silence.  At most, the evidence cited by the government suggests that Congress assumed, in light of the expectation of secrecy, that persons whose information was targeted by a § 215 order would rarely even know of such orders, and therefore that judicial review at the behest of such persons was a non‐ issue.”

The decision from the appeals court also goes to great lengths to dismantle the Justice Department’s arguments in support of the use of Section 215 to collect the telephone metadata. Much of the discussion in the ruling centers on specific terms and language in the statute and the definition of phrases such as “threat assessment.” In the end, the judges found that the government has been interpreting the language in Section 215 far too broadly.

“In limiting the use of § 215 to ‘investigations’ rather than ‘threat assessments,’ then, Congress clearly meant to prevent § 215 orders from being issued where the FBI, without any particular, defined information that would permit the initiation of even a preliminary investigation, sought to conduct an inquiry in order to identify a potential threat in advance. The telephone metadata program, however, and the orders sought in furtherance of it, are even more remote from a concrete investigation than the threat assessments that – however important they undoubtedly are in maintaining an alertness to possible threats to national security – Congress found not to warrant the use of § 215 orders,” the ruling says.

“After all, when conducting a threat assessment, FBI agents must have both a reason to conduct the inquiry and an articulable connection between the particular inquiry being made and the information being sought. The telephone metadata program, by contrast, seeks to compile data in advance of the need to conduct any inquiry (or even to examine the data), and is based on no evidence of any current connection between the data being sought and any existing inquiry.”

Some telecom operators vocally supported the court’s decision.

“As a telecom that can be compelled to participate in unconstitutional surveillance, we welcome the federal court decision striking down mass collection of telephone metadata under Section 215 of the PATRIOT Act,” said Becky Bond, Vice President at CREDO Mobile. “This gives even greater urgency to our fight to stop Congress from reauthorizing the worst abuses of the PATRIOT Act, which are set to sunset June 1.

“If Section 215 is reauthorized by the USA Freedom Act it will grant telecoms immunity for breaking the law and threatens to ratify what the court has clearly declared illegal search and seizure of Americans’ private information. It’s time for Congress to get on the side of justice and end unconstitutional surveillance under Section 215 of the PATRIOT Act.”

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