Federal Appeals Court Rules NSA’s Phone Data-Vacuuming Illegal

The U.S. Court of Appeals for the Second Circuit has ruled, in essence, that the U.S. National Security Agency’s collection of metadata concerning Americans’ communications is illegal.

The court vacated U.S. District Judge William Pauley’s December 2013 ruling in ACLU v. Clapper, and remanded the case to the District Court for the Southern District of New York for further proceedings.

Pauley had granted the government’s motion to dismiss the American Civil Liberties Union’s complaint and denied the ACLU’s motion for a preliminary injunction.

“The Second Circuit found the government incorrect in many of its arguments, and the government collection of bulk metadata is not authorized under Section 215 of the Patriot Act,” ACLU Staff Attorney Patrick Toomey told the E-Commerce Times.

The Second Circuit court recognizes Americans are creating metadata on a larger and larger scale with new technology, he added.

The Court’s Ruling

The government pointed out that telephone metadata doesn’t include the voice content of telephone conversations.

However, that “does not vitiate the privacy concerns arising out of the government’s bulk collection of such data,” Circuit Judge Gerard E. Lynch wrote. The more metadata the government collects and analyzes, the greater capacity for such metadata “to reveal ever more private and previously unascertainable information about individuals.”

The court reaffirmed the district court’s ruling that the ACLU had standing in the case, and also that it had standing to file suit under the First and Fourth Amendments.

Lynch dismissed government contentions that Section 215 implicitly precludes the ACLU from filing suit in federal court. He rejected the argument that the secrecy provisions attached to Section 215 orders indicate, in essence, that Congress did not intend that people could file suit in federal court over Section 215 orders.

Breaking Down the Ruling

The court “found standing based primarily on collection because this was a seizure — their data are being collected,” said Lee Tien, a senior staff attorney at the Electronic Frontier Foundation.

“It also found standing for search purposes, because searching a database ‘looks’ at everything to see if it matches a search term,” he told the E-Commerce Times.

The court “held that the government’s crazy broad construction of ‘relevance’ was wrong, and that ‘authorized investigation’ in the statute cannot be read to mean that there’s ‘only one enormous antiterrorism investigation,'” Lee said. “And it held that you cannot use the nature of the ‘investigative technique’ to expand relevance.”

The ruling “demonstrates the need for reform, not only of bulk collection practices, but also in areas such as transparency, accountability and oversight,” Reform Government Surveillance Coalition spokesperson Jessica Herrera-Flanigan told the E-Commerce Times.

Implications of the Ruling

“The judge stopped short of actually forcing [the NSA] to stop, but he did set the stage for Congress not only to vote on [Section 215] but to know that if it was approved for extension, this would be challenged and probably defeated in court,” Private.Me COO Robert Neivert told the E-Commerce Times.

Section 215 is one of three provisions of the Patriot Act that expire June 1. The other two are the “lone wolf” provision and the “roving wiretap” provision.

What Might Happen Next

The ruling is only binding in the Second Circuit — and only for now, said the EFF’s Tien.

The government could petition the Second Circuit Court for a rehearing, or take the case to the Supreme Court, or stop bulk metadata collection, Tien suggested.

Other cases against NSA bulk metadata collection are pending in other courts.

What About Snowden?

The lawsuits over NSA bulk metadata collection were triggered by the revelations of NSA whistle-blower Edward Snowden, about whom public perception is divided. Many hail him as a hero, but the U.S. government and intelligence community have branded him a traitor.

Snowden’s actions might now become a side issue, because the NSA’s bulk metadata collection “has transitioned to being more an issue about our privacy, and less about his acts of releasing the information,” Neivert suggested.

“We do want security,” he said, “but there have to be limits.”