NSA program on phone records is illegal, court says

The National Security Agency has collected millions of Americans’ phone records under a program the Obama administration has said was authorized by Congress. (Patrick Semansky/Associated Press)

By Ellen Nakashima-May 7 

A federal appeals court on Thursday ruled that the National Security Agency’s collection of millions of Americans’ phone records violates the Patriot Act, the first appeals court to weigh in on a controversial surveillance program that has divided Congress and ignited a national debate over the proper scope of the government’s spy powers.

The NSA’s gathering of phone records for counterterrorism purposes — launched after the Sept. 11, 2001, terrorist attacks — was revealed by former agency contractor Edward Snowden in June 2013. The revelation sparked outrage but also steadfast assertions by the Obama administration that the program was authorized by statute and deemed legal by a series of federal surveillance court judges.

But the judicial rulings had taken place in secret, until the Snowden leaks forced disclosure of once-classified opinions.

In its decision, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, based in New York, determined that the government stretched the meaning of the statute to enable the vast collection of Americans’ data from U.S. phone companies on a daily basis without a warrant. The NSA is collecting “metadata” — or records of times, dates and durations of calls — but not call content.

[The opinion from the U.S. Court of Appeals for the 2nd Circuit]

“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 relevant,” the court said.

“We agree with appellants that such an expansive concept of ‘relevance’ is unprecedented and unwarranted.”

The 97-page ruling comes as Congress faces a June 1 deadline to reauthorize the statute that underpins the NSA program or let it lapse. A bipartisan coalition of lawmakers in the House and Senate is seeking to renew the statute with modifications that supporters say will enable the NSA to get access to the records it needs while protecting Americans’ privacy.

The Senate majority leader, Mitch McConnell (R-Ky.), and the chairman of the Senate intelligence committee, Richard Burr (R-N.C.), introduced a bill to maintain the program.

Administration officials have indicated that they are likely to endorse the bipartisan reform legislation, which is called the USA Patriot Act. But the ACLU and a coalition of groups on the left and the right are pushing to let the statute, which is known as Section 215 of the Patriot Act, simply lapse.

“The appeals court’s careful ruling should end any debate about whether the NSA’s phone-records program is lawful,” said Jameel Jaffer, ACLU deputy legal director. “The ruling has broader significance as well, because the same defective legal theory that underlies the call-records program underlies many of the NSA’s other mass-surveillance programs. The ruling warrants a reconsideration of all of those programs.”

White House officials on Thursday said they were evaluating the decision and declined further comment.

“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 Edward Price, a National Security Council spokesman. “We continue to work closely with members of Congress from both parties to do just that, and we have been encouraged by good progress on bipartisan, bicameral legislation that would implement these important reforms.”

The issue is one that has split lower courts, making it more likely, some analysts say, that it will be taken up by the Supreme Court. The U.S. District Court for the District of Columbia in December 2013 held that the program was probably unconstitutional. The appeals court for the District has not yet ruled on that appeal.

Michael Sussmann, a former Justice Department official who is now a partner at Perkins Coie practicing surveillance law, called Thursday’s ruling “sweeping and unambiguous.”

“Only the Supreme Court will be able to bring harmony to these polar opposite views of the program and the law,” he said.

Ellen Nakashima is a national security reporter for The Washington Post. She focuses on issues relating to intelligence, technology and civil liberties.