The United States Court of Appeals for the Ninth Circuit has ruled [PDF] that the National Security Agency's phone-call slurping was indeed naughty, seven years after former contractor Edward Snowden blew the whistle on the tawdry affair.
The ruling had nothing to do with Snowden himself. Instead it concerned four Somali nationals convicted of funneling funds to terrorist organisations in 2013.
It's been a long time coming, and while some might view the decision as a slap for officials that defended the practice, the three-judge panel said the part played by the NSA programme wasn't sufficient to undermine the convictions of four individuals for conspiring to send funds to Somalia in support of a terrorist group.
Snowden made public the existence of the NSA data collection programmes in June 2013, and by June 2015 US Congress had passed the USA FREEDOM Act, "which effectively ended the NSA's bulk telephony metadata collection program," according to the panel.
The panel took a long, hard look at the metadata collection programme, which slurped the telephony of millions of Americans (as well as at least one of the defendants) and concluded that not only had the Fourth Amendment of the constitution likely been violated, it certainly flouted section 1861 of the Foreign Intelligence Surveillance Act (FISA), which deals with access to business records in foreign intelligence and international terrorism investigations.
"On the merits," the ruling said, "the panel held that the metadata collection exceeded the scope of Congress's authorization in 50 U.S.C. § 1861, which required the government to make a showing of relevance to a particular authorized investigation before collecting the records, and that the program therefore violated that section of FISA."
So, both illegal and quite possibly unconstitutional.
It isn't a good look for the intelligence services. The panel was able to study the classified records and noted that "the metadata did not and was not necessary to support the requisite probable cause showing for the FISA Subchapter I warrant application in this case."
The panel went on to administer a light slapping to those insisting that the metadata programme was an essential element in the case. The evidence, such as it was, "did not taint the evidence introduced by the government at trial," the panel observed before going on to say: "To the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record."
Thus not only illegal, possibly unconstitutional but also not particularly helpful in this instance, no matter what officials might have insisted.
While the American Civil Liberties Union (ACLU) declared the ruling "a victory for our privacy rights", the process could have a while to run yet, including a trip to America's Supreme Court. ®