NYT: N.S.A. Won't Be Ordered to Stop Bulk Collection Early

http://www.nytimes.com/2015/10/30/us/politics/nsa-wont-be-ordered-to-stop-bulk-collection-early.html

OCT. 29, 2015

N.S.A. Won't Be Ordered to Stop Bulk Collection Early

By CHARLIE SAVAGE

WASHINGTON -- A federal appeals court on Thursday declined to order the National Security Agency to end one month early its bulk collection of records about Americans' domestic phone calls.

The three-judge panel on the United States Court of Appeals for the Second Circuit had ruled in May that the once-secret bulk phone records program [1] was illegal. But by allowing the program to continue until Nov. 29, when it will expire under a bill passed by Congress, the court avoided making a definitive assessment of whether such bulk collection violates Fourth Amendment protections against unreasonable searches and seizures.

The ruling [2] also sidestepped a potential conflict between the appeals court and the Foreign Intelligence Surveillance Court, which permitted the program to continue during a transition period.

The bulk phone records program, which the government uses to hunt for hidden associates of terrorism suspects, dates back to the aftermath of the Sept. 11, 2001, terrorist attacks. It came to light in June 2013 after the leaks [3] by Edward J. Snowden, setting off a public debate.

The appeals court said in its decision in May that the law that the Justice Department and the surveillance court had interpreted to authorize the program, Section 215 of the USA Patriot Act, could not be legitimately construed to permit bulk collection.

In early June of this year, Congress enacted the USA Freedom Act, which laid the groundwork for an alternative phone records program and said that Section 215 could not be used for bulk collection after a 180-day transition period. The Freedom Act was silent about whether the statute could be used for bulk collection during the transition.

Later in June, the government obtained permission [4] from the surveillance court to resume the program while it built and tested a replacement system, in which the records will remain in the hands of phone companies but will be available for swift searches by the N.S.A.

In July, the American Civil Liberties Union, which had filed the case that led to the Court of Appeals' ruling against the program, asked that the court [5] issue an injunction against the program before the six-month transition was over. It argued that the program was still not legitimately authorized by Section 215, and that it violated the Fourth Amendment.

But the panel on Thursday declined to intervene. It said that Congress knew that it was authorizing the program to continue during a six-month transition when it enacted the Freedom Act. That stands in contrast to its earlier ruling that lawmakers never intended for Section 215 to be used for bulk collection when they enacted the Patriot Act.

And because there is only a month left, the panel said, it would be imprudent to address the weighty Fourth Amendment issues raised by the case. At issue is the question of whether modern technology has changed the meaning of privacy rights since the Supreme Court decided in 1979 that the Constitution did not protect phone metadata -- logs showing who contacted whom, but not what was said.

"We agree with the government that we ought not meddle with Congress's considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority," Judge Gerard E. Lynch wrote. "We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief."

Alexander Abdo of the A.C.L.U. expressed disappointment with the ruling but lauded the imminent end of the program.

"While we disagree with the appeals court's decision, its earlier ruling and the passage of the USA Freedom Act mean that bulk collection of Americans' call records will end in just a few weeks," he said. "All Americans should celebrate that fact."

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

[2] https://www.documentcloud.org/documents/2490722-2nd-circuit-opinion-in-aclu-v-clapper-october-2015.html

[3] http://www.nytimes.com/2013/06/11/us/how-edward-j-snowden-orchestrated-a-blockbuster-story.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/2015/07/15/us/politics/aclu-sues-to-stop-part-of-nsas-bulk-phone-data-collection.html