Appeals Court: NSA Not Authorized to Collect Americans’ Phone Records

By Barbara Hollingsworth | May 7, 2015 | 3:20pm EDT

( – The National Security Agency’s (NSA) bulk telephone metadata program, which has been collecting and storing information from phone calls made by Americans since 2006, “exceeds the scope of what Congress has authorized,” a three-judge federal appeals panel in New York unanimously ruled on Thursday.

NSA’s “bulk telephone metadata program is not authorized by Section 215” of the Patriot Act, according to the 97-page ruling by the 2nd Circuit Court of Appeals in a case filed in June 2013 by the American Civil Liberties Union (ACLU) and the New York Civil Liberties Union.

“The basic requirements for metadata collection under Sec. 215 are simply that the records be relevant to an authorized investigation (other than a threat assessment),” the appellate court noted.

But under the NSA program, “the records demanded are all-encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry.”

"The government takes the position that the metadata collected – a vast amount of which does not contain directly ‘relevant’ information, as the government concedes – are nevertheless ‘relevant’ because they may allow the NSA at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant," the ruling noted.

“We agree with appellants that such an expansive concept of ‘relevance’ is unprecedented and unwarranted. The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here.”

The judges also voiced their concern about the open-ended nature of NSA’s bulk telephone metadata collection, which “requires that the phone companies turn over records on an ‘ongoing daily basis’ – with no forseeable end point, no requirement of relevance to any particular set of facts, and no limitations as to subject matter or individuals covered.”

Although NSA claims that the masive number of phone records it collects are relevant to its “counterterrorism investigations,” the “government has not attempted to identify to what particular ‘authorized investigation’ the bulk metadata of virtually all Americans’ phone calls are relevant,” Judge Gerard Lynch pointed out.

“The government effectively argues that there is only one enormous ‘anti-terrorism’ investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.”

But such an interpretation “would require a drastic expansion of the term ‘relevance’, not only with respect to Sec. 215 but also as that term is construed for purposes of subpoenas, and of a number of national security-related statutes, to sweep further than those statutes have ever been thought to reach….

“If the government is correct, it could use Sec. 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including email and social media information) relating to all Americans.”

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” Lynch continued. “Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism.

“But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakeable language. There is no evidence of such a debate in the legislative history of Sec. 215… and the language of the statute, on its face, is not naturally read as permitting investigative agencies, on the approval of the FISC [Foreign Intelligence Surveillance Court], to do any more than obtain the sorts of information routinely acquired in the course of criminal investigations of ‘money laundering [and] drug dealing.’”

Although the telephone metadata that phone companies are required to turn over to the federal government does not include voice content, it does include other personal details, such as the phone numbers of the caller and the person called, the length of the call, and routing information.

“That telephone metadata do not directly reveal the content of telephone calls does not vitiate the privacy concerns arising out of the government’s bulk collection of such data,” Judge Lynch wrote.

In fact, metadata can reveal a “startling amount of detailed information,” including “civil, political or religious affiliations… an individual’s social status, or whether and when he or she is involved in intimate relationships.”

“The more metadata the government collects and analyzes, the greater capacity for such metadata to reveal ever more private and previously unascertainable information about individuals,” the court ruling noted.

Furthermore, “in today’s technologically based world, it is virtually impossible for an ordinary citizen to avoid creating metadata about himself on a regular basis simply by conducting his ordinary affairs,” Lynch added.

ACLU filed its lawsuit after former NSA contractor Edward Snowden leaked a government order in 2013 that required Verizon to turn over all call records to the agency on a daily basis. ACLU is a Verizon customer.

At that time, “the government acknowledged that it was part of a broader program of bulk collection of telephone metadata from other telecommunications  providers carried out pursuant to Section 215” of the Patriot Act, which is set to expire on June 1, according to the ruling.

"This decision is a resounding victory for the rule of law," ACLU attorney Alex Abdo, who argued the case before the appeals court in September, said in a statement.

"For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority. The court rightly rejected the government's theory that it may stockpile information on all of us in case that information proves useful in the future. Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society."

The appellate court sent the case back to the same lower court that dismissed it in 2013 without deciding whether NSA’s metadata program was a violation of the First and Fourth Amendments of the U.S. Constitution as ACLU had alleged.

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