May 7, 2015

Attorneys suing to end the Snowden-exposed collection have mixed feelings.

A federal appeals court in New York ruled Thursday the National Security Agency’s dragnet collection of U.S. phone records is illegal in a decision that intentionally injected the court into the ongoing political debate over whether Congress should renew provisions of the Patriot Act.

In a unanimous ruling, a three-judge panel of the court said the harvest and five-year storage of Americans’ call records is not authorized by Section 215 of the Patriot Act, a law passed in 2001 weeks after the 9/11 terror attacks.

The judges said if they accepted the government’s arguments, Section 215 could be stretched to allow boundless collection of metadata on Americans from social media platforms, health care providers and banks.

“[W]e would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language,” they wrote.

 

The decision from the U.S. Court of Appeals for the 2nd Circuit comes eight months after oral arguments in the case and weeks before Section 215 expires on June 1. Congress currently is debating legislation that would reauthorize the provision, either with modification or without. Some lawmakers want it to expire altogether.

Opponents of the once-secret program, including Patriot Act author Rep. Jim Sensenbrenner, R-Wis., say Bush and Obama administration lawyers intentionally misinterpreted Section 215 and kept many lawmakers in the dark about the bulk collection. Many, including Sensenbrenner, say they had little knowledge of the breadth of the data collection until 2013 leaks from whistleblower Edward Snowden.

“Today’s court decision reaffirms what I’ve been saying since the Snowden leaks came to light,” Sensenbrenner said in a statement. “Congress never intended Section 215 to allow bulk collection. This program is illegal and based on a blatant misinterpretation of the law.”

 

The judges declined to rule on the American Civil Liberties Union’s claims the collection violates First and Fourth Amendment rights, but gave a clear indication of the court's leanings.

“The seriousness of the constitutional concerns,” the judges wrote, “has some bearing on what we hold today, and on the consequences of that holding.”

The ruling directly addressed legislative proposals for reform, such as Sensenbrenner's USA Freedom Act, and declined to issue an injunction against the collection because Section 215 may either expire or be modified this month.

Obama appointee Gerard Lynch wrote the opinion, joined by Obama appointee Vernon Broderick and Clinton appointee Robert Sack. They overturned the December 2013 dismissal of the case by Judge William Pauley, a Clinton appointee.

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Sack also wrote a separate concurring opinion in which he bashed the secrecy of the Foreign Intelligence Surveillance Court, which for years approved the government’s interpretation before one of its orders was leaked by Snowden in June 2013.

The FISC, more than a dozen judges of which have approved the program, continues to reauthorize the collection at regular intervals.

“[T]here may be aspects of FISC operations that simply do not warrant secret treatment,” Sack wrote, whacking at the secret court’s nonadversarial review of government requests. He wrote “the ‘leak’ by Edward Snowden that led to this litigation calls to mind the disclosures by Daniel Ellsberg that gave rise to the legendary ‘Pentagon Papers’ litigation.”

Jesselyn Radack, an attorney for Snowden, who is living in exile in Russia, says “this historic ruling against mass surveillance was only possible because of Edward Snowden. He should be allowed to return to the United States without fear of criminal prosecution.”

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Two executive branch review panels found the program is not essential to stopping terrorist attacks, its stated purpose. Critics say the administration cannot point to one concrete example in which the data collection alone disrupted such a plot.

Before Thursday, only one other federal judge, District Judge Richard Leon, had ruled against the program. Leon, a George W. Bush appointee, ruled in December 2013 in U.S. District Court for the District of Columbia that the “almost Orwellian” collection probably violates the Fourth Amendment. That decision, in a case brought by legal activist Larry Klayman, is being reviewed by a panel of the U.S. Court of Appeals for the D.C. Circuit, which heard oral arguments in November.

Cindy Cohn, executive director of the Electronic Frontier Foundation, says the appeals court ruling is "a great and welcome decision and it ought to make Congress pause to consider whether the small changes it’s making in the USA Freedom Act are really sufficient.”

Cohn participated in oral arguments supporting Klayman’s win and has been involved with a third appeal against the collection in the 9th Circuit. She's pleased the decision “rips apart the government’s interpretation” of words such as “relevance” and “investigation” under Section 215.

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“I don’t think that Congress alone giving an endorsement to these words would be sufficient under the court’s analysis,” she says. “I think Congress would actually have to say very clearly what it was doing in order to get over that and then the question is whether that would survive [constitutional analysis].”

Klayman, who like Cohn and many civil liberties advocates is unconvinced the Section 215-reforming Freedom Act goes far enough, is less pleased.

“It was a total cop out,” he says. “We look for the D.C. Circuit to put its foot down and end this unconstitutional, illegal abuse of the surveillance system.”

“Who’s to say, now that we’ve seen how the government violates the law, they don’t grab [the data] from Verizon and the other carriers surreptitiously?” he says. “That’s why there needs to be a clear-cut decision saying this is unconstitutional. It’s not a question of this statute or that statute, it’s a violation of the Fourth Amendment.”

Klayman says the court’s decision not to issue an injunction to the ACLU, citing pending legislation, “is totally inappropriate, it’s playing politics” – a sentiment likely shared by some supporters of the collection within government.

http://www.usnews.com/news/articles/2015/05/07/nsa-phone-record-program-illegal-appeals-court-findshttp://www.usnews.com/news/articles/2015/05/07/nsa-phone-record-program-illegal-appeals-court-finds