Metadata collected by the NSA for years deemed illegal by Appeals court
By Alex Thomas
(INTELLIHUB) — In a sweeping victory against the surveillance state, the US federal appeals court has ruled that the National Security Agency’s mass warrantless collection of phone records is illegal.
The metadata collection program, first exposed by whistleblower Edward Snowden, was ruled illegal because it has gone much further than intended by Congress when Section 215 of the Patriot Act was originally written.
The three judge panel in New York wrote:
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 sheer volume of information sought is staggering.
The ruling in the case, ACLU v. Clapper, is a massive victory for privacy advocates and civil libertarians throughout the country and comes at a time when a growing number of Congress is speaking out against widespread NSA surveillance.
It could also impact other laws that the NSA is using to justify various spy programs within the agency.
As the ACLU noted, “The decision could also affect many other laws the government has stretched to the breaking point in order to justify dragnet collection of Americans’ sensitive information.”
Overruling a previous dismissal of the case, the judges concluded:
The district court held that 215 of the PATRIOT Act impliedly precludes judicial review; that plaintiffs‐appellants’statutory claims regarding the scope of § 215 would in any event fail on the merits; and that § 215 does not violate the Fourth or First Amendments to the United States Constitution.
We disagree in part, and hold that § 215 and the statutory scheme to which it relates do not preclude judicial review, and that the bulk telephone metadata program is not authorized by § 215.
We therefore VACATE the judgement of the district court and REMAND for further proceedings consistent with this opinion.
The ruling will attempt to require the government to provide the Foreign Intelligence Surveillance Court with evidence that proves that there are reasonable grounds for data collection before it is carried out.
Before this ruling, section 215 of the Patriot Act was used as blanket permission to collect whatever metadata the NSA wanted.
“To obtain a § 215 order, the government must provide the FISC [Foreign Intelligence Surveillance Court] with ‘a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment).’”
An ACLU blog post on the court victory highlighted the key takeaways from the ruling and why the landmark victory matters:
1. It recognizes that Section 215 of the Patriot Act does not authorize the government to collect information on such a massive scale. Section 215 allows the government to demand from third parties “any tangible thing” relevant to foreign intelligence or terrorism investigations. “Relevant” is a pretty abstract term, but the government employed a pretty fantastical interpretation to argue that every single call record in America is “relevant” because some of those records might come in handy in a future investigation.
2. The decision’s significance extends far beyond the phone records program alone. It implicates other mass spying programs that we have learned about in the past two years and — almost certainly — others that the government continues to conceal from the public. For example, we know that the Drug Enforcement Administration, for decades, employed a similar definition of “relevance” to amass logs of every call made from the United States to as many as 116 different countries. The same theory was also used to justify the collection of email metadata. Both those programs have been discontinued, but the legal reasoning hasn’t, and it could very well be the basis for programs the government has never acknowledged to the public, including the CIA’s bulk collection of Americans’ financial records.
3. Metadata is incredibly sensitive and revealing. The government has long argued that the phone records program doesn’t reveal the contents of calls, and as such, it is not an invasion of privacy. But metadata, especially in aggregate, can be just as revealing as content, painting a detailed picture of a person’s life.
4. The importance of adversarial review. The court recognized that public, adversarial litigation concerning the lawfulness of this spying program was vitally important to its decision — and it drew a direct contrast to the secret, one-sided proceedings that occur in the Foreign Intelligence Surveillance Court.
The FISC operates in near-total secrecy, in which it almost always hears only from the government. It oversees a wide variety of broad surveillance programs without any public participation or input, approving a body of secret law that has no place in a democracy. This decision affirms the role that federal courts — and the public — have in overseeing practices with such sweeping constitutional implications.
5. The congressional reforms under consideration just don’t cut it. Ahead of Section 215’s sunset on June 1, Sen. Majority Leader Mitch McConnell (R-Ky.) is trying to push through a straight reauthorization of the provision, extending its life by another five years. After today’s decision came down, he took to the floor to defend the program — a position altogether at odds with the appeals court decision, with the conclusions of multiple executive-branch review groups who found the program hasn’t been effective in stopping terrorism, and with the clear consensus that supports far-reaching surveillance reform. Another bill in play (which the ACLU neither supports nor opposes), the USA Freedom Act of 2015, doesn’t go nearly far enough, most notably in ensuring that the government cannot engage in broad collection of innocent Americans’ private information.
Meanwhile, Congress is currently in a major battle over the future of the Patriot Act and specifically section 215. Although not near enough, a few members of Congress have gone out of their way to push back against NSA surveillance.
Sadly, they have been met by heavy resistance from both parties. A warning from Congressman Justin Amash was posted on his Facebook page shortly after the ruling. (H/T FreeThoughtProject)
From day one following the revelation of the NSA’s bulk collection program, I have said that the warrantless collection of records on all Americans violates both the Fourth Amendment to the Constitution and the plain reading of Section 215 of the Patriot Act. Today’s Second Circuit ruling makes clear that the executive branch’s interpretation of the statute—interpreting records “relevant” to a terrorism investigation to mean all records everywhere—is “unprecedented and unwarranted.”
In light of this ruling, Congress must not proceed with the latest version of the USA Freedom Act. While limiting certain types of bulk collection, the latest USA Freedom Act would authorize bulk collection of Americans’ records for the first time, thereby undoing some of the progress resulting from the Second Circuit’s decision.
Instead, Congress should pass, and the president should sign, the original USA Freedom Act, as introduced in 2013 before amendments, that protects the liberty and privacy of all Americans while providing the intelligence community the authority necessary to deal with those who seek to harm us.
The ACLU has fought the NSA on the bulk metadata collection since 2013 when a judge originally dismissed their claims. The lawsuit challenged the constitutionality of the NSA mass collection of Americans phone records and argued that the dragnet justified by Section 215 of the Patriot Act violated the Fourth Amendment. It also charged that the program exceeded the authority given by Congress under the Patriot Act. Amazingly, three judges in the US federal appeals court have agreed.
This ruling pushes back the NSA on one level but ultimately needs to be accompanied by strict legislation from Congress. It is up to the American people to continue to put pressure on their representatives and continue to protest the surveillance state in order for the momentum of this ruling to continue. The fight is far from over.
ACLU v. Clapper – Challenge to NSA Mass Call-Tracking Program – ACLU.org
Case 14-42, Document 168-1, 05/07/2015 – PDF
About the Author
Alex Thomas is a reporter who has worked in the alternative media for over three years. His work has been featured on numerous news outlets including Infowars and RT. Alex is an exclusive weapon of Intellihub.
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