A federal appeals court, in a decision that may be mostly symbolic, ruled on Thursday that the National Security Agency does not have the authority to carry on its massive electronic sweeping-up of telephone data — authority that has been used for at least nine years but that is now due to expire at the start of next month.
The ninety-seven-page ruling by a three-judge panel of the U.S. Court of Appeals for the Second Circuit would have been a major setback, had the decision come earlier, for the government’s anti-terrorism intelligence-gathering program. The issue might have gone on to the Supreme Court, but that appears unlikely, given the current situation.
The panel did not order the program to be stopped, and left it to Congress to decide what to do next, with the specific law at issue (a part of the Patriot Act) set to end if there is no new legislation. A bipartisan bill is now under review in Congress; if passed, it would cut back somewhat on the sweep of the program.
If a new version of the data-collection system gets Congress’s approval, the Circuit Court said, it would then be subject to a potential constitutional challenge, based on claims of an invasion of personal privacy. In its ruling Thursday, the panel explicitly avoided any ruling on the constitutionality of the program.
The long-secret telephone “metadata” collection program has been widely criticized since many of its details were revealed by a series of leaks two years ago by a former NSA contractor, Edward Snowden. A broad court challenge to the law, filed by the American Civil Liberties Union, followed the Snowden revelations.
That challenge failed in a federal trial court, but succeeded Thursday in the Circuit Court. Before reaching its final conclusion that the provision at issue — so-called, Section 215 of the Patriot Act — did not authorize a program as expansive as the NSA has developed, the panel cleared away obstacles that have blocked other court challenges to the program.
First, the panel ruled that it was clear that the telephone records of these were among those swept up by NSA, so these challengers had shown a kind of legal injury that entitled them to sue (that is, they had “standing” to sue). Second, the three judges decided that Congress has not blocked those who were targets of the surveillance from going to court to challenge it. The government had contended that only the communications companies whose data were demanded by the government had a limited right to challenge the scope of those demands, and that right existed only in the secret Foreign Intelligence Surveillance Court.
More than half of the panel’s main opinion, written by Circuit Judge Gerard E. Lynch, dealt with those preliminary matters over the right to sue.
The part of the Patriot Act at issue, Section 215, actually existed before Congress passed the Patriot Act soon after the 2001 terrorist attacks on the United States. In its prior form, the provision allowed the FBI to get access to business records for use in gathering foreign intelligence about potential terrorism. Such access had to be approved by the secret Foreign Intelligence Surveillance Court, but that tribunal — which acts after hearing only from the government — seldom turned down government requests, under any version of Section 215.
The Patriot Act expanded the clause, allowing the government not only to seek business records but also “any tangible things” that the government felt it needed to check as part of a terrorism investigation. Although the provision has had several “sunset” points, at which it would have ended, Congress has extended Section 215 seven times. The latest provided that the s’s ection would expire this June 1.
The data sweeps that the secret court authorized the National Security Agency to gather from the companies providing telephone services went much further, with approval of the secret court, than had ever previously been done. The companies were ordered to hand over to NSA, in bulk form, every day’s data of all telephone calls made through their systems, where one or both ends of the call were located inside the U.S. NSA then stored the data and, using a system of computer-directed searches, made several “hops” from one caller to the next, to the next, to the next, to check out possible terrorism links.
The ACLU and related organizations filing the challenge in federal court argued that it violated the Constitution, but also contended that it simply had not been authorized, in the form in which NSA was conducting it, under Section 215. That second argument is the one that the three-judge panel accepted.
While it said that Section 215 “sweeps broadly,” in a breadth comparable to what a grand jury investigating crime might seek, the Circuit Court said the feature of what NSA was doing under that section were its bulk collection and storage features. That creates, it said, a “historical repository” that the NSA from time to time can pore through using sophisticated computer technology to follow suspicious telephone hookups.
The result, the panel said, is “unprecedented and unwarranted,” and goes beyond anything any federal law has even come close to authorizing.
“The sheer volume of information sought [by NSA],” the Circuit Court said, “is staggering,” and, despite the government’s point that it does not examine the actual contents of what is said on the monitored calls, can show a very great deal about the persons who are on the calls and about their personal lives.
Unlike normal search warrants or subpoenas, that seek records from a particular person or company and for only a limited time, the orders that NSA gets approved by the secret court allow it to sweep up “every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient to provide such records on an ongoing basis as they are created.”
The opinion added: “The telephone metadata program requires that the phone companies turn over records on an ‘ongoing daily basis’ — with no foreseeable end point, no requirement of relevance to any particular set of facts, and no limitations as to subject matter or individuals covered.”
The program reaches so widely, the panel added, that it not tied to any government activity that could qualify as an actual investigation, but Section 215 as Congress wrote it specifies that the data gathering must be tied to a specific investigation.
The NSA program as it has come to exist, the Circuit Court said, results in “an unprecedented contraction of the privacy expectations of all Americans,” and something of that “momentous” character ought to be preceded by “substantial debate and expressed in unmistakable language.” Congress did not engage in such a debate in enacting Section 215, and the language it chose is not naturally read to encompass the sweep of the telephone data sweeps, it commented.
“The language of Section 215 is decidedly too ordinary for what the government would have us believe is such an extraordinary departure from any accepted understanding” of the terms normally used to allow searches for information related to an authorized investigation, the opinion commented.
Rejecting a separate government argument that Congress has “implicitly” endorsed what NSA has been doing, the Circuit Court said “Congress cannot reasonably be said to have ratified a program of which many members of Congress — and all members of the public — were not aware.” The controversy that has grown up around the NSA sweeps, the opinion said, makes clear that Congress had not “quietly but knowingly” embraces the program.
The panel chose not to grant the challengers’ request for a court order to stop the program because of the finding of illegality. While not deciding the constitutional challenges to the program, the three judges said the seriousness of those concerns had a bearing on what it had decided and what results from its ruling, since those issues may come up again if Congress passes a new version of the Patriot Act.
With Section 215 due to expire on June 1, the panel said, the NSA program would only remain in place for a few weeks while Congress ponders what to do about that expiration. By refusing to block the program at this point, it added, the court set the stage for Congress to work its will, if it chooses to do so. Both the scope of Section 215 and the legal issues raised about it, and the constitutional questions over it, may be altered by what Congress does, or doesn’t do, it said.
Judge Lynch’s opinion was joined in full by Circuit Judge Robert D. Sack and by a federal district court judge named temporarily to sit on the Circuit Court, Judge Vernon S. Broderick, who sits in New York City.
Judge Sack wrote a separate thirteen-page concurring opinion, to stress the continuing importance of a judicial role in monitoring the use of modern telephone search technology. He also commented somewhat critically on the nature of the secret operations of the special court that authorized the NSA program.