The NSA's bulk collection of Americans' phone call records may be illegal, a US federal appeals court has ruled.
The US Second Circuit Court of Appeal unanimously ruled that the NSA's bulk telephone metadata1 program was not authorised by section 215 of the Patriot Act, voiding an earlier ruling by a lower court. The US District Court for the Southern District of New York dismissed a legal challenge to the NSA dragnet surveillance program. Judge Vernon S Broderick ruled that section 215 of the Patriot Act was a statutory scheme that precludes judicial review.
The decision by three judges on appeal overturns that decision and re-opens the case against the NSA that it acted contrary to either the Fourth or First Amendments to the US Constitution. Lawyers are still to argue on these points properly. Attorneys for the ACLU (American Civil Liberties Union) have however succeeded in re-instating the case and in deprecating the Patriot Act as a trump card in justifying surveillance, as the ruling by the judges explains.
The district court held that § 215 of the PATRIOT Act impliedly precludes judicial review; that plaintiffs‐appellants’ statutory claims regarding the scope of § 215 would in any event fail on the merits; and that § 215 does not violate the Fourth or First Amendments to the United States Constitution.
We disagree in part, and hold that § 215 and the statutory scheme to which it relates do not preclude judicial review, and that the bulk telephone metadata program is not authorized by § 215.
The ruling - that the NSA's telephone metadata program exceeded what was authorised by Congress under the Patriot Act - has no bearing on the NSA's extensive international spying activities. Only domestic spy programs against US residents and citizens are within the scope of the lawsuit.
The ACLU - which filed its lawsuit in 2013 in the wake of revelations by the Snowden leaks - nonetheless hailed the ruling as a victory. Other critics of the NSA joined in the celebration.
Former NSA officer turned counterintelligence strategist and author John Schindler dismissed the significance of the case in a series of updates to his @20committee Twitter profile.
"IRL metadata is a tiny portion of what #NSA does. 98% of Agency SIGINT ops are unaffected if metadata goes away. If I'd been DIRNSA I would have ditched metadata program years ago ... its going away now doesn't matter all that much for #NSA SIGINT ops," he said.
Former NSA general counsel Stewart Baker separately said that the appeal court decision will in any case be "moot in a month". This is a reference to the USA FREEDOM Act, which would limit the bulk metadata program. The Act has cleared the House Judiciary Committee, and is in the precess of going through the US Senate. ®
1 Metadata refers to information like the number called, the location of the caller and the length of a call rather than the actual content of a conversation.