NYT: A.C.L.U. Asks Court to Stop Part of N.S.A.'s Bulk Phone Data Collection

http://www.nytimes.com/2015/07/15/us/politics/aclu-sues-to-stop-part-of-nsas-bulk-phone-data-collection.html

JULY 14, 2015

A.C.L.U. Asks Court to Stop Part of N.S.A.'s Bulk Phone Data Collection

By CHARLIE SAVAGE

WASHINGTON -- The American Civil Liberties Union on Tuesday asked a federal appeals court [1] to partially shut down the National Security Agency program that collects Americans' phone records in bulk, which resumed last month after a lapse of several weeks. The move sets up a potential conflict between the regular court system and the nation's secret spy court over whether the program is legal.

In May, the United States Court of Appeals for the Second Circuit ruled [2] that the program was illegal. It said that the law the government says authorizes the program, Section 215 of the U.S.A. Patriot Act, could not be legitimately interpreted as permitting the systematic collection of Americans' domestic phone records. But the court refrained from issuing an injunction because the law was about to expire.

In early June, Congress passed a law, [3] the U.S.A. Freedom Act, extending Section 215 but saying the government could not use that provision for bulk collection after a 180-day transition period. The bill did not say whether Section 215 could be used for bulk collection before that period expires on Nov. 29, so the question of whether the program would be legal until then remained ambiguous.

In late June, a judge on the secret Foreign Intelligence Surveillance Court disagreed with the Second Circuit [4] that the program was illegal and authorized the N.S.A. to resume collecting bulk phone records for the duration of the 180-day period. Now, the A.C.L.U. is asking the Second Circuit to block the program with the injunction it had previously refrained from issuing.

"The legislative debate to which this court deferred has now come and gone," the group said in its motion. "Although it considered doing so, Congress did not expand the government's statutory authority to permit bulk collection of call records. The government continues to collect call records in bulk, however, based on the same statutory language this court has already held does not permit it."

The A.C.L.U.'s request for a preliminary injunction would initially bar the government only from collecting or using records about the group's own phone lines. But the same legal reasoning would apply to everyone else, and the group's broader lawsuit seeks the shut down of the entire program.

As an appeals court, the Second Circuit is a higher court than the spy court, which consists of Federal District Court judges selected to serve for six-year terms by Chief Justice John G. Roberts Jr. [5] But the spy court is not subject to the Second Circuit's authority because it has its own review panel.

Section 215 allows the spy court to issue orders permitting the Federal Bureau of Investigation to obtain records that are "relevant" to a national security investigation. In 2006, the spy court secretly ruled that it could use that provision to order phone companies to turn over domestic calling records in bulk to the N.S.A., for the purpose of hunting for hidden terrorists.

President George W. Bush established the bulk collection program in October 2001, and it operated until 2006 under a claim of presidential power alone. The Obama administration kept the secret program, but it was exposed in 2013 in leaks by Edward J. Snowden, the former spy agency contractor. After the disclosures, plaintiffs in several jurisdictions, including the A.C.L.U., filed lawsuits contending that the program was illegal, and the Second Circuit's ruling against it in May was the first by an appellate-level panel.

A central plank of the Second Circuit's ruling in May was that the public and most members of Congress did not know [6] about the government's interpretation of Section 215. The spy court judge said last month that in the Freedom Act, lawmakers had now ratified the idea that Section 215 could be used for bulk phone records collection during the 180-day transition period to a replacement system in which the data would stay in the hands of phone companies.

In its motion, however, the A.C.L.U. noted that the Freedom Act stated that it was not changing the scope and limits of the authority previously provided by Section 215 during the 180-day period, and that some lawmakers had made it clear that they did not interpret the provision to authorize bulk collection at all.

Even if the Second Circuit were to accept the idea that Congress has legalized bulk collection for the 180-day transition period, other issues remain. For example, the court in May sidestepped the separate question of whether the program violated the Constitution. But if it finds that the statutory problem is now fixed, the constitutional question could re-emerge.

It is possible that arguments over such questions will consume the entire 180-day period, after which the question of whether to stop the bulk collection would become moot. Still, there remains a separate question of what will happen to the five years' worth of previously collected domestic calling records the N.S.A. is storing in its databases.

The Obama administration has not said whether it intended to have the N.S.A. keep those records or purge them. But in another lawsuit over the program, the Justice Department argued in a June 19 filing [7] that courts have no authority to order the N.S.A. to expunge previously collected phone records, even if the courts rule that the government collected them unlawfully.

[1] https://www.documentcloud.org/documents/2165572-2015-07-14-aclu-v-clapper-aclu-motion-for-pi.html

[2] http://www.nytimes.com/2015/05/08/us/nsa-phone-records-collection-ruled-illegal-by-appeals-court.html

[3] http://www.nytimes.com/2015/06/03/us/politics/senate-surveillance-bill-passes-hurdle-but-showdown-looms.html

[4] http://www.nytimes.com/2015/07/01/us/politics/fisa-surveillance-court-rules-nsa-can-resume-bulk-data-collection.html

[5] http://www.nytimes.com/2013/07/26/us/politics/robertss-picks-reshaping-secret-surveillance-court.html

[6] http://www.nytimes.com/2015/05/15/us/politics/nsa-opens-debate-over-how-long-democracy-can-wage-battles-in-shadows.html

[7] https://www.documentcloud.org/documents/2165475-smith-govt-supp-brief.html