N.S.A. Phone Spying Program Is Illegal, Appeals Court Rules

A U.S. spying program that systematically collects millions of Americans’ phone records turned out to be illegal, which put pressure on Congress to instantly decide whether to replace or end the controversial anti-terrorism surveillance.

Photo: Sophia Cope/Flickr

Photo: Sophia Cope/Flickr

According to the 2nd U.S. Circuit Court of Appeals in Manhattan, the Patriot Act did not authorize the National Security Agency to collect Americans’ calling records massively. The case was revealed by Edward Snowden, a former government security contractor who lives as a fugitive in Russia now.

The 2nd Circuit is the first federal appeals court to rule on the NSA program’s legality. Federal appeals courts in Washington, D.C. and California also count.

Circuit Judge Gerard Lynch wrote for a three-judge panel that Section 215, which addresses the FBI’s ability to gather business records, could not be interpreted to have permitted the NSA to collect a big amount of phone records:

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate.”

However, the appeals court did not rule on whether the surveillance violated the U.S. Constitution. Besides, it refused to suspend the program, noting that parts of the Patriot Act including Section 215 expire on June 1.

Gerard Lynch considered that it was “prudent” to give Congress a chance to decide what surveillance is permissible, given the national security interests at threat.

Looking back, in June 2013 Edward Snowden exposed the agency’s collection of “bulk telephony metadata.” The data includes the existence and duration of calls made, but not the content of conversations.

If Congress updates the NSA program, then courts may need to review what it does. If Congress reauthorizes Section 215, there could be further litigation that may require the Supreme Court’s debate.

According to Ned Price, a spokesman for the White House’s National Security Council, President Barack Obama wants to terminate the NSA program and is determined to find an alternative that maintains its “essential capabilities.”

The existing NSA program has frequently been approved in secret by a national security court established under a 1978 law, the Foreign Intelligence Surveillance Act (FISA).

Last week, the House Judiciary Committee voted 25-2 to terminate the massive collection of telephone data through the USA Freedom Act. The bill is expected to pass the full House, and the White House has signaled support for it.

While a similar bipartisan bill is pending in the Senate, Majority Leader Mitch McConnell and Intelligence Committee chair Richard Burr, both Republicans, have proposed extending Section 215 and other parts of the Patriot Act through 2020.

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