The NSA's Bulk Collection of Your Telephone Data Is Illegal, Appeals Court Rules

A US Appeals Court has ruled that the bulk collection of Americans' telephone records by the National Security Agency (NSA) is illegal and that, for the last decade, the NSA has been collecting your data in a way that Congress never intended.

The decision, by the Second Circuit Appeals Court, reverses a decision by a New York District Court last year that ruled the American Civil Liberties Union (ACLU) did not have adequate standing to challenge the NSA's bulk metadata collection under section 215 of the Patriot Act.

According to the NSA, section 215 of the Patriot Act allows the government to collect "tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities." It was passed by Congress shortly after the September 11th terrorist attacks.

The thing is, "tangible things" and "foreign intelligence information" has been interpreted by the government to mean information about every American's telephone calls—including call times and locations, length of calls, the numbers you've called, and other assorted "metadata"—as unveiled by Edward Snowden as part of his earliest leaks two years ago.

The appeals court ruled Thursday that this wide interpretation was not intended by Congress and is, in fact, illegal.

"The text of § 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program," Circuit Court judge Gerard Lynch wrote in its decision.

The court ruled that the program is far too expansive, was not intended to be as secret as it is, and threw out several of the government's arguments: namely, the government said that the targets of surveillance (i.e. everyone) were not supposed to know about it because the Patriot Act contains a secrecy clause—and therefore, it cannot and should not be able to be sued on these grounds.

The government also argued that it has been allowed to collect data en masse before as part of grand jury proceedings. It further said that the act does not authorize the NSA to collect data for "prospective" investigations that could occur in the future.

"The metadata concerning every telephone call made or received in the United States using the services of the recipient provider [i.e. Verizon] are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation," Lynch wrote.

"The government can point to no grand jury subpoena that is remotely comparable to the real-time data collection undertaken under this program."

So, Section 215 collections: illegal. That means the NSA has to stop, right?

Not quite. The timing of this decision comes at a very interesting time—Section 215 is set to expire on June 1, just a couple of weeks from now. Congress is very actively debating whether the section should be renewed, done away with, or altered. There are various pieces of legislation—notably, the FREEDOM Act—that would do away with the metadata program altogether. Considering the timing, the court ruled that it would wait for Congress to act (passing any actionable decisions back to the lower district court) before making any sweeping proclamations.

"We deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape," Lynch wrote. "If Congress fails to reauthorize § 215 itself, or reenacts § 215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end, and once again there will be time to address what if any relief is required in terms of the data already acquired by the government."

If Congress happens to renew section 215—a very real possibility—the telephone metadata program will still be illegal. The question then becomes whether the lower district court will actually stop it.

"The current reform proposals from Congress look anemic in light of the serious issues raised by the Second Circuit," Anthony Romero, executive director of the ACLU, said in a statement. "Congress needs to up its reform game if it's going to address the court's concerns."

White House National Security Counsel spokesperson Edward Price said the President is still "evaluating the decision."

"The President has been clear that he believes we should end the Section 215 bulk telephony metadata program as it currently exists by creating an alternative mechanism to preserve the program's essential capabilities without the government holding the bulk data," he said. "We continue to work closely with members of Congress from both parties to do just that, and we have been encouraged by good progress on bipartisan, bicameral legislation that would implement these important reforms."

It's also important that the court decided the ACLU had standing at all. The Patriot Act's secrecy clauses have led the government to argue that any challenges to it would out national security secrets. The government also said that, because it's a secret program, it should be impossible for people to know they've been spied on or been harmed—meaning they shouldn't be allowed to challenge the government in court. The court disagreed.

"The government's own orders demonstrate that appellants' call records are indeed among those collected," Lynch wrote, meaning the ACLU (and everyone) has standing to challenge the NSA on them.

"The government argues that Congress must have intended to preclude judicial review of § 215 orders, because if any customer of a company that receives a § 215 order may challenge such an order, lawsuits could be filed by a vast number of potential plaintiffs," Lynch wrote.

"That argument, however, depends on the government's argument on the merits that bulk metadata collection was contemplated by Congress and authorized by § 215," he added. "The risk of massive numbers of lawsuits challenging the same orders, and thus risking inconsistent outcomes and confusion about the legality of the program, occurs only in connection with the existence of the orders authorizing the collection of data from millions of people."

Importantly, the court decided not to assess whether the bulk collection program is actually legal under the Fourth Amendment of the Constitution, which protects against illegal searches and seizures. The court has left the door open for Congress to specifically authorize bulk collections—and, if that were to happen, a separate lawsuit or appeal would assess the Constitutionality of that new law.

"Because we conclude that the challenged program was not authorized by the statute on which the government bases its claim of legal authority, we need not and do not reach these weighty constitutional issues," Lynch wrote. "We do not purport to express any view on the constitutionality of any alternative version of the program. The constitutional issues, however, are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary."

Congress is currently deciding what to do with Section 215, and it has a very limited amount of time to do so. A simple renewal of the program would be problematic; it should be a very interesting couple of weeks.