

When a panel of federal judges from the Second Circuit Court of Appeals ruled that the NSA's bulk-phone records spying program was illegal, it was a legal game-changer, but what, exactly, does it all mean?

The Electronic Frontier Foundation's legal analysis is the best, easiest-to-understand and most comprehensive article I've yet seen on the ruling. The tldr is:

1. When Congress gave the NSA the power to gather "relevant" information and do so for an "investigation," they didn't mean "gather everything and store it forever in case it becomes relevant later."

2. Having your data collected by the NSA gives you the right to sue them — even if the NSA never looked at that data.

3. Metadata is sensitive information, and the NSA can't argue that its mass-spying is harmless because it's collecting metadata instead of data (the fact that you called a suicide hotline is every bit as compromising as what you said while you were talking to them).

4. The judges have "concerns" about the constitutionality of mass spying (though the didn't go so far as to say that it is unconstitutional, partly because the ACLU had already won on the statutory language alone;

5. One judge added: The government shouldn't have secret laws. The government argued that its interpretation of surveillance laws was a secret, and the court spanked them for it, saying that a law that's "shrouded in secrecy" lacked legitimacy.

The public first learned that the NSA was collecting millions of Americans' phone records on a daily basis back in 2006. However, it wasn't until June 5, 2013, when the Guardian published a secret document disclosed by former NSA contractor Edward Snowden, that we learned the government's full legal justification for the program. That document was an order from the secretive Foreign Intelligence Surveillance Court (FISC) directing Verizon to turn over the private calling records of ordinary people in bulk pursuant to Section 215. Shortly afterward, the ACLU filed suit to stop the program, arguing both that it violated the First and Fourth Amendments, and the statute itself did not authorize the NSA's program. In December 2013, the district court ruled for the government on all of these claims. On appeal, the Second Circuit agreed with the ACLU that the government's formerly secret interpretation of the law is wrong. Rather, the text of the law provides no clue to the massive programs the government claims it secretly authorizes. The Second Circuit court pointed out that the language of Section 215 only allows the government to get "an order requiring the production of any tangible things" if it provides "a statement of facts showing that . . . the tangible things sought are relevant to an authorized investigation." But, the court reasoned, a decade-long program of dragnet surveillance involving the bulk collection of millions of Americans' telephone records simply can't be "relevant to an authorized investigation." The court explained it this way:

The government takes the position that the metadata collected—a vast amount of which does not contain directly "relevant" information, as the government concedes—are nevertheless "relevant" because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is irrelevant. We agree with appellants that such an expansive concept of "relevance" is unprecedented and unwarranted.

The court also found that other language in Section 215 proved the government's arguments wrong. Section 215 also links the scope of the orders it authorizes to that of grand jury subpoenas. The court explained that the orders to telecommunications providers "extend to every record that exists, and indeed to records that do not yet exist," and there has never been a grand jury subpoena like that. In the Second Circuit's view, such an unprecedented expansion of the concept of relevance would require significant public debate. That simply didn't happen with Section 215—despite the fact that Congress has (somewhat blindly) renewed Section 215 seven times. As the Supreme Court charmingly put it, Congress does not "hide elephants in mouseholes."



EFF Case Analysis: Appeals Court Rules NSA Phone Records Dragnet is Illegal

[Andrew Crocker/Electronic Frontier Foundation]





(Image: Justice Gavel,

Tori Rector, CC-BY-SA)