ACLU accuses government of continuing to collect Americans’ call records until end of year on basis of law which federal court has ruled prohibits exactly this

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The leading civil liberties group in the United States has requested a federal court to stop the National Security Agency from collecting Americans’ phone data in bulk through the end of the year.



While the surveillance dragnet was phased out by Congress and Barack Obama last month, an American Civil Liberties Union suit seeks to end a twilight, zombie period of the same US phone records collection, slated under the new law to last six months.

“Today the government is continuing – after a brief suspension – to collect Americans’ call records in bulk on the purported authority of precisely the same statutory language this court has already concluded does not permit it,” the ACLU writes in a motion filed on Tuesday before the second circuit court of appeals.

The venue is significant. On 7 May, as Congress debated ending the domestic phone-records collection, the second circuit ruled the collection was illegal. Yet it did not order Obama’s administration to cease the bulk collection, writing that a preferable option would be to stay out of the unfolding legislative battle over the future scope of US surveillance.

That debate ended on 2 June with the passage of the USA Freedom Act, which reinstated expired provisions of the Patriot Act that the government had since 2006 relied upon – erroneously, in the second circuit’s view – for the bulk collection. Yet it ended the NSA’s bulk US phone records collection and created a new mechanism for the NSA to gather “call data records” from telecoms pursuant to a court order.

Within hours of signing the bill, Obama requested that the secret surveillance panel known as the Fisa court reinstate the dragnet, relying on a provision permitting a six-month “transition” period. Judge Michael Mosman granted the request on 29 June.

The ACLU, which was the plaintiff in the case the second circuit decided, has indicated since the Fisa court began considering resumption of the dragnet that it would seek an injunction.

Its major contention in support of the requested injunction is that despite the Freedom Act’s provision for a transition period, the underlying law authorizing the bulk surveillance remains the same Patriot Act provisions that the second circuit held do not justify the NSA phone-records collection.

“There is no sound reason to accord this language a different meaning now than the court accorded it in May. [The Patriot Act] did not authorize bulk collection in May, and it does not authorize it now,” reads the ACLU brief.

The ACLU also takes Mosman’s opinion to task, arguing that the Fisa court judge overemphasized the lack of a clear prohibition on bulk collection during the Freedom Act’s envisaged transitional period.

“In our democracy, the government has only the powers the people have granted it; the question is not what surveillance Congress has proscribed, but what surveillance it has permitted,” the ACLU contends.

“This dragnet surveillance program should never have been launched, and it should certainly be terminated now,” Jameel Jaffer, deputy legal director of the ACLU, said in a statement.

“Not even the government contends anymore that the program has been effective, and the second circuit has already concluded that the program is illegal. It’s a needless and unlawful intrusion into the privacy rights of millions of innocent Americans.”