American appeals court rules bulk collection of phone records by NSA is illegal, but program still continues
The bulk collection of phone records by the National Security Agency (NSA) has been ruled as illegal in the US Court of Appeals.
The decision is a key landmark for the NSA’s activities, and overturns a ruling in December 2013 which cleared the process, known as Prism. It also raises the prospect of legal challenges to the NSA going forward, as the program to gather customer phone meta data is still ongoing.
Today’s ruling followed a legal challenge by the American Civil Liberties Union (ACLU), which said NSA data collection contravened the US constitution.
That ruling came after NSA whistleblower Edward Snowden had revealed to the world in June 2013 the surveillance practices of the NSA. The Snowden revelations were first published by the Guardian newspaper, when it published details about the NSA collecting the telephone records of millions of US customers of Verizon, one of the leading telecom operators in the United States.
The NSA can examine and mine all the ‘meta data’ of these communications, i.e. the telephone numbers of both parties on a call, as well as location data, call duration, unique identifiers, and the time and duration of all calls.
The authorisation to conduct the data gathering comes from the US Patriot Act, which was introduced after the September 2001 attacks on America. Section 215 of the Act gave US government agencies (including the NSA) the authorisation to carry out the bulk collection of the meta data of all US telephone calls.
The current law is set to expire on June 1 this year, but currently Senate Majority Leader Mitch McConnell is sponsoring a bill that will extend this data harvesting authorisation until December 31 2020.
For the time being, according to the Guardian newspaper, a panel of three federal judges for the 2nd US Circuit Court of Appeals in New York has opted not to end the NSA’s domestic bulk collection while Congress decides its fate. They said that judicial inaction is “a lesser intrusion” on privacy than at the time the case was initially argued.
“In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape,” the judges reportedly ruled.
But they issued the following warning to Senate Majority Leader Mitch McConnell over his bill.
“There will be time then to address appellants’ constitutional issues,” the judges said. “We hold that the text of section 215 cannot bear the weight the government asks us to assign to it, and that it does not authorise the telephone metadata program,” concluded their judgement.
“Such a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft‐used language long held in similar contexts to mean something far narrower,” the judges were quoted by the Guardian as saying.
“We conclude that to allow the government to collect phone records only because they may become relevant to a possible authorized investigation in the future fails even the permissive ‘relevance’ test,” the ruled. “We agree with appellants that the government’s argument is ‘irreconcilable with the statute’s plain text’.”
Shhh! Do our whistleblower quiz – we won’t tell!