NEW YORK – The National Security Agency’s bulk collection of phone data isn’t legal, a federal appeals court said just weeks before the law the government used to justify the program is set to expire.
A three-judge panel in New York held Thursday that the program goes beyond the authority granted by the Patriot Act, a law passed after the Sept. 11, 2001, terrorist attacks that expanded government surveillance and data collection. A lower-court judge had said the program is legal.
The appeals court didn’t rule on arguments raised by the American Civil Liberties Union that the program violates constitutional free-speech guarantees and protections against unreasonable searches and seizures. The judges also declined to issue a court order blocking the program as Congress weighs changes to surveillance laws.
“Allowing the program to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on appellants’ privacy than they faced at the time this litigation began,” U.S. Circuit Judge Gerard Lynch said, writing on behalf of the panel.
During oral arguments in September, the judges expressed skepticism that U.S. law permitted the government to routinely intercept call data, comparing the question to the seizure of bank records or other information without a warrant.
Thursday’s ruling is the first by a federal appeals court considering challenges to the NSA program. Appeals courts in Washington and San Francisco are reviewing the program. The government can ask the appeals court to reconsider Thursday’s decision or seek review by the U.S. Supreme Court.
A disagreement among the federal appeals courts could make high court review more likely. Congress, which is currently considering the NSA program, may also act.
“For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority,” ACLU attorney Alex Abdo, who argued the case before the three-judge panel in September, said in a statement. “The court rightly rejected the government’s theory that it may stockpile information on all of us in case that information proves useful in the future.”
The ACLU lawsuit, filed in June 2013, is one of several challenging the NSA data-collection program first revealed by former government contractor Edward Snowden.
A U.S. district judge in Washington called the program “almost Orwellian” in a December ruling and said it probably violates constitutional privacy rights. The government appealed.
The NSA collects information about calls made and received on major U.S. phone networks, including the numbers of callers and recipients and the time and length of calls.
The government said it uses the information to uncover U.S. contacts with international terrorist organizations.
“While the collection is indeed broad, the scope of counterterrorism investigations is unprecedented,” U.S. District Judge William H. Pauley III in Manhattan wrote in the Dec. 27 decision overruled Thursday. “The question of whether that program should be conducted is for the other two coordinate branches of government to decide.”
The government argued in court papers that investigators review only data related to contacts within one or two steps of a suspected terrorist, a small percentage of the records it collects.
The U.S. also argued that the ACLU and other nonprofit groups challenging the program lack legal standing because they can’t show their telephone data were actually reviewed by the government.
The ruling comes as lawmakers struggle with whether to extend or curb the government’s authority to conduct the widespread surveillance revealed in document leaks by Snowden in 2013.
The Patriot Act’s Section 215, under which intelligence agencies have justified the phone surveillance, is set to expire June 1 unless Congress passes a bill backed by Senate Republicans to extend it through the end of 2020.
Because the court didn’t rule on the program’s constitutionality, lawmakers could choose to amend the act to explicitly authorize the data collection.
“We are reviewing that decision,” U.S. Attorney General Loretta Lynch said in a hearing Thursday before the Senate Appropriations Committee. Citing the law’s imminent expiration, Lynch said she’s working with the Senate and other bodies “to look for ways to reauthorize Section 215 in a way that does preserve its efficacy and protect privacy.”
Meanwhile, lawmakers aren’t coalescing around any particular legislation.
Liberal Democrats are siding with some Republicans to advocate barring NSA from collecting such data and require telephone and Internet companies to retain the information for a period of time.
Senate Republican leaders back legislation that would extend the government’s statutory authority to collect telephone “metadata” for detecting and thwarting terrorist threats.
“If we had the tools we have today, we might have stopped the attacks,” Sen. Richard Burr, the North Carolina Republican and chairman of the Intelligence Committee, said Thursday on the Senate floor as lawmakers debated the program. Burr supports renewing the Patriot Act provision.
In February, the Obama administration released a report outlining U.S. intelligence agency limits on the information they collect on foreigners, including purging material that isn’t relevant to national security after five years.
The measures were part of the White House response to the backlash against the collection and retention of data through electronic surveillance. Data on foreigners are now to be deleted within five years unless the director of national intelligence grants an extension.
“We are in the process of evaluating the decision handed down this morning,” Edward Price, a National Security Council spokesman, said in a statement. “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.”
