ACLU lawsuit argued the data collection should be stopped because it violates Americans’ privacy rights
A federal appeals court ruled a National Security Agency program that collects phone records on millions of Americans is illegal, intensifying a fight in Congress over extending the soon-to-expire surveillance effort.
A three-judge panel of the Second U.S. Circuit Court of Appeals in New York eviscerated many of the legal theories under which the U.S. government has expanded surveillance since the Sept. 11, 2001, terror attacks. The judges didn’t address whether the NSA program violates constitutional privacy rights, as some groups allege, but found the Patriot Act language used by the Bush and Obama administrations to justify the program wasn’t meant to allow such mass data gathering.
“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 wrote in their 97-page ruling. “The sheer volume of information sought is staggering.”
The NSA has used Section 215 of the Patriot Act—a 2001 law that expanded the government’s authority to search for terror suspects—to justify collecting records of nearly every call made in the U.S. The program gathers metadata—the number called, the time and the duration of the call—but not the content of the conversation. The intent is to look for possible contacts among terror suspects.
The scope of the program was revealed in 2013 when former NSA contractor Edward Snowden leaked documents describing it, reigniting a debate over the data collection and whether it infringes on Americans’ privacy.
The ruling throws the fate of the Patriot Act into further disarray as lawmakers scramble to determine how to approach Section 215 of the law, which expires June 1 and is already the subject of tense negotiations over whether it should be reauthorized or face significant curbs.
The House is poised to soon vote on the USA Freedom Act, which would renew some expiring sections of the Patriot Act while ending the NSA database of phone records. The White House favors that approach.
In the Senate, however, Majority Leader Mitch McConnell (R., Ky.) has made clear he wants a simple extension of the current law—arguing there isn’t time to debate changes before it expires.
But the top Democrat in the Senate, Harry Reid of Nevada, said Thursday he would use whatever procedural moves possible to block legislation extending the program without significant changes.
Sens. Mike Lee (R., Utah) and Patrick Leahy (D., Vt.), who crafted the USA Freedom Act, said they wouldn’t support any extension of the current program.
The House Judiciary Committee passed a bill 25-2 last week that would end bulk collection of records under Section 215, instead requiring the government to obtain the records on a case-by-case basis. The administration has signaled support for the measure.
A White House spokesman declined to comment on the court ruling, but said the president wants to create “an alternative mechanism to preserve the program’s essential capabilities without the government holding the bulk data.”
Testifying before Congress hours after the ruling, Attorney General Loretta Lynch called Section 215 a “vital tool” for national security but indicated she would be open to modifications.
The different approaches underscore a basic challenge: neither camp may have enough votes in both chambers to get their wish, and if no legislation passes, Section 215 will expire at the end of the month.
The court, while sharply critical of the program, didn’t order the collection to stop, noting the legislative debate and the looming expiration of Section 215 will force action on the issue one way or another.
But the judges, in often stark language, undercut the primary legal basis the U.S. has long cited for its bulk records collection. For years, government lawyers have maintained they are allowed to collect the records because—while such data aren’t connected to any terror suspects—they all are inherently relevant to terrorism probes and law enforcement may need to search them later to find connections between suspects.
“Such an expansive concept of ‘relevance’ is unprecedented and unwarranted,” the judges wrote, adding that “government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.”
The court’s ruling was in response to a lawsuit by the American Civil Liberties Union arguing the data collection should be stopped because it violates privacy rights. A lower court judge ruled the program was constitutional, and the civil-liberties group appealed, leading to Thursday’s decision.
“The text of [Section] 215 cannot bear the weight the government asks us to assign to it, and … does not authorize the telephone metadata program,” the court wrote.
The panel sent the case back to the lower court judge for further review based on the appeals court findings.
How the legal fight proceeds depends greatly on what Congress does next. If lawmakers reauthorize the current version of the Patriot Act, the ACLU case will likely head to the Supreme Court. If Congress passes a modified version of the law, the lower and appeals courts will likely have to take a fresh look at the new language to see if it passes muster.
In their ruling, the appeals-court judges noted that if Congress decides to approve some version of the phone-data-collection program in coming days, then the privacy issue could be revisited in court.
Anthony Romero, executive director of the ACLU, said the decision makes the current changes proposed in Congress “look anemic.” He urged Congress “to up its reform game if it’s going to address the court’s concerns.”
The phone-data program began in 2001. Five years later the Bush administration, seeking to give it firmer legal footing, put it under the authority of the Foreign Intelligence Surveillance Court, which repeatedly approved it in secret rulings.
Over the years, privacy groups tried to learn more about the collection and stop it, but their efforts were largely frustrated until Mr. Snowden released documents detailing it and other intelligence-collection programs.
Those details gave new momentum to privacy advocates and some lawmakers, including those who helped write the Patriot Act, who insisted they had never meant to authorize bulk spying on innocent Americans.
— Kristina Peterson and Siobhan Hughes contributed to this article.
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