The ruling last week by the Second Circuit Court of Appeals that the NSA’s years-long bulk collection of phone metadata is illegal is a “clear signal” that courts are moving in the direction of striking down some mass surveillance programs, experts say.
The decision, issued Thursday, is among the first major rulings to go against the federal government since the exposure of the NSA’s comprehensive mass surveillance programs began in 2013. It comes in a case filed by the ACLU and others, including current and former Verizon customers angered by the collection of their mobile phone metadata as part of the program. In the ruling, the judges held that the collection program is not authorized by Section 215 of the Patriot Act, which has been the statutory authority used to justify it.
“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 says.
Lawyers at the EFF, who worked as experts on behalf of the plaintiffs, said that the court’s ruling is a message that the way the Department of Justice and intelligence community have been interpreting Section 215 is incorrect.
“On appeal, the Second Circuit agreed with the ACLU that the government’s formerly secret interpretation of the law is wrong. Rather, the text of the law provides no clue to the massive programs the government claims it secretly authorizes. The Second Circuit court pointed out that the language of Section 215 only allows the government to get ‘an order requiring the production of any tangible things’ if it provides ‘a statement of facts showing that . . . the tangible things sought are relevant to an authorized investigation’,” Andrew Crocker, a staff attorney at the EFF, wrote in a post analyzing the decision.
“But, the court reasoned, a decade-long program of dragnet surveillance involving the bulk collection of millions of Americans’ telephone records simply can’t be ‘relevant to an authorized investigation.'”
One of the main issues with Section 215 surveillance program is that not only is it done in secret–before the Edward Snowden revelations–the orders authorizing it have been secret, as is the way that the Foreign Intelligence Surveillance Court handles requests for the collection. This makes outside oversight or insight into the program virtually impossible.
“Both the Second Circuit panel opinion and a concurrence submitted by Judge Sack emphasized that the NSA’s faulty interpretation of Section 215 was even more galling because it was ‘shrouded in secrecy’ having been approved by only a one-sided, secret court, the Foreign Intelligence Surveillance Court,” Crocker said.
The collection of phone metadata, which can include things such as numbers called, time of call, duration of call, and other information, was the first of the NSA’s programs to be revealed two years ago, and top agency officials and others have said that the metadata isn’t enough to identify people involved in the calls. But Crocker said that isn’t a valid argument for the program.
“Closely tracking arguments made by EFF in its amicus brief, as well as our arguments in Smith v. Obama and Klayman v. Obama, the court also recognized that aggregation of calling records matters because collection of large amounts of metadata plus the application of sophisticated data processing technologies gives the government access to even more revealing portraits of individuals and groups. The court also noted that there’s very little anyone can do to avoid generating this information,” Crocker said.