Appeals court strikes down government's phone surveillance program

Brad Heath | USA TODAY

A federal appeals court declared on Thursday that a National Security Agency program that sweeps up logs of Americans' phone calls is illegal, representing the most significant setback yet for the long-running surveillance operation.

The U.S. Court of Appeals for the 2nd Circuit in New York said the program "exceeds the scope of what Congress has authorized" under the USA Patriot Act, which the government has maintained permitted that massive data collection.

"The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here," Judge Gerard Lynch wrote for the three-judge panel.

"The sheer volume of information sought is staggering," the court said, extending to "every record that exists, and indeed to records that do not yet exist."

The challenge was filed by the American Civil Liberties Union nearly two years ago after NSA whistleblower Edward Snowden disclosed the program's existence. Since then, a federal judge in Washington has said the program is likely unconstitutional, and two other federal appeals courts are reviewing it.

The 97-page opinion sidestepped the constitutional question, other than to note that it raises "one of the most difficult issues in Fourth Amendment jurisprudence: the extent to which modern technology alters our traditional expectations of privacy."

"For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority," said ACLU attorney Alex Abdo, who argued the case before the three-judge panel in September. "The court rightly rejected the government's theory that it may stockpile information on all of us in case that information proves useful in the future."

The court did not order an immediate halt to the data collection, because the law that the government claimed authorized it is set to expire next month, and Congress is debating an extension or replacement.

"In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape," the court wrote.

The controversial program, which gathers information about phone calls made and received but does not eavesdrop on their content, has been the subject of several court challenges.

The 2nd Circuit appeals court panel that heard oral argument in September expressed skepticism about the reach of the program, which is intended to guard against terrorism. Its opinion Thursday amplified on that concern.

"If the government is correct, it could use (the law) to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e‐mail and social media information) relating to all Americans," the court said.

"Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans."

The court said the government cannot rely on its expansive definition of what's relevant when it's not conducting a specific investigation. The government "has not attempted to identify to what particular 'authorized investigation' the bulk metadata of virtually all Americans' phone calls are relevant," it said.

That same interpretation of relevance was used to justify the Drug Enforcement Administration's bulk data collection beginning more than two decades ago. A former Justice Department lawyer told USA TODAY last month that officials knew they were pushing the limits of what could be considered relevant. That DEA surveillance program offered a legal blueprint for the far broader phone surveillance program the NSA launched after the Sept. 11 terrorist attacks.

The case ultimately could be headed to the Supreme Court, particularly if another federal appeals court reaches a different conclusion. The government's appeal of District Judge Richard Leon's initial decision was argued before the U.S. Court of Appeals for the District of Columbia Circuit in November. Another challenge was argued before the 9th Circuit Court of Appeals in December.

The phone surveillance program, which was among those Snowden disclosed in 2013, already is on life support. President Obama has asked Congress for changes that would leave the data in the hands of private phone companies, not the government.

"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," said Ned Price, spokesman for the White House National Security Council. "We continue to work closely with members of Congress from both parties to do just that."

The House Judiciary Committee voted last week to end the NSA phone surveillance program. The full House of Representatives is expected to vote on the bill next week.

A bipartisan group of senators has introduced an identical bill, although its fate is less certain. Senate Majority Leader Mitch McConnell has introduced a competing bill that would simply renew the USA Patriot Act through 2020. Several key sections are set to expire next month, including Section 215, which the NSA has used to justify its bulk collection of phone records.

Anthony Romero, executive director of the American Civil Liberties Union, said changes being discussed in Congress "look anemic in light of the serious issues raised by the Second Circuit. Congress needs to up its reform game if it wishes to address the court's concerns."