Guardian: NSA mass phone surveillance revealed by Edward Snowden ruled illegal

http://www.theguardian.com/us-news/2015/may/07/nsa-phone-records-program-illegal-court

NSA mass phone surveillance revealed by Edward Snowden ruled illegal

* Collection of millions of Americans' phone records is ruled unlawful

* Landmark decision by appeals court clears way for full challenge against NSA

Dan Roberts in Washington and Spencer Ackerman

7 May 2015

The US court of appeals has ruled that the bulk collection of telephone metadata is unlawful, in a landmark decision that clears the way for a full legal challenge against the National Security Agency.

A panel of three federal judges for the second circuit overturned an earlier ruling [1] that the controversial surveillance practice first revealed to the US public by NSA whistleblower Edward Snowden in 2013 could not be subject to judicial review.

But the judges also waded into the charged and ongoing debate over the reauthorization of a key Patriot Act provision currently before US legislators. That provision, which the appeals court ruled the NSA program surpassed, will expire on 1 June amid gridlock in Washington on what to do about it.

The judges opted not to end the domestic bulk collection while Congress decides its fate, calling judicial inaction "a lesser intrusion" on privacy than at the time the case was initially argued.

"In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape," the judges ruled.

But they also sent a tacit warning to Senator Mitch McConnell, the Republican leader in the Senate who is pushing to re-authorize the provision, known as Section 215, without modification: "There will be time then to address appellants' constitutional issues."

"We hold that the text of section 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program," concluded their judgment. [2]

"Such a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft-used language long held in similar contexts to mean something far narrower," the judges added.

"We conclude that to allow the government to collect phone records only because they may become relevant to a possible authorized investigation in the future fails even the permissive 'relevance' test.

"We agree with appellants that the government's argument is 'irreconcilable with the statute's plain text'."

The ruling, one of several in federal courts since the Guardian exposed the domestic bulk collection thanks to Snowden, immediately took on political freight.

Senator Rand Paul, a Republican presidential candidate who has made opposition to over-broad surveillance central to his platform, tweeted: "The phone records of law abiding citizens are none of the NSA's business! Pleased with the ruling this morning."

The White House stressed that it too supported an overhaul of the program, though declined to comment on the blow to the NSA's existing legal authority.

"We are in the process of evaluating the decision handed down this morning," assistant press secretary Ned Price told the Guardian.

"Without commenting on the ruling today, 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.

"We continue to work closely with members of Congress from both parties to do just that, and we have been encouraged by good progress on bipartisan, bicameral legislation that would implement these important reforms," added Price.

But opponents in Congress were emphatic that the ruling represented a breakthrough in their fight to rein in executive overreach on surveillance.

"Today's court decision reaffirms what I've been saying since the Snowden leaks came to light. Congress never intended Section 215 to allow bulk collection," said Republican Jim Sensenbrenner.

"This program is illegal and based on a blatant misinterpretation of the law. It's time for Congress to pass the USA Freedom Act in order to protect both civil liberties and national security with legally authorized surveillance."

"This is a huge step for individual Americans' rights," added leading Senate critic Ron Wyden.

"Now that this program is finally being examined in the sunlight, the executive branch's claims about its legality and effectiveness are crumbling. The president should end mass surveillance immediately. If not, Congress needs to finish the job and finally end this dragnet."

The American Civil Liberties Union, which led the initial legal challenge against director of national intelligence James Clapper, predicted that its victory on Thursday should force Congress to take a tougher approach.

"The current reform proposals from Congress look anemic in light of the serious issues raised by the second circuit," said the ACLU director, Anthony Romero. "Congress needs to up its reform game if it's going to address the court's concerns."

Leading reformers in the Senate also urged Senator McConnell to allow a vote on the reform-minded USA Freedom Act rather than attempt to simply update existing legislation when it expires in a few days time.

"Congress should not reauthorize a bulk collection program that the court has found to violate the law," said a joint statement from Democratic senator Patrick Leahy and Republican Mike Lee. "We will not consent to any extension of this program ... We urge the majority leader to bring the USA Freedom Act up for a vote next week after the House passes it."

But Senator McConnell initially appeared unconvinced despite the court's ruling, insisting that the White House's suggested alternative of having telephone companies retain data rather than the NSA was not an improvement.

"The USA Freedom Act would replace Section 215 with an untested, untried and more cumbersome system," said the Republican majority leader. "It would not end bulk collection of call data. Instead, it would have untrained, corporate employees with uncertain supervision and protocols do the collecting. So it switches this responsibility from the NSA, with total oversight, to corporate employees with uncertain supervision and protocols."

The original ruling against the ACLU from Judge William Pauley, a Clinton appointee to the southern district of New York, argued that al-Qaida's "bold jujitsu" strategy to marry seventh century ideology with 21st century technology made it imperative that government authorities be allowed to push privacy boundaries.

But Thursday's appeal court ruling in New York, by circuit judges Robert Sack and Gerard Lynch and district judge Vernon Broderick, overturns that and forces the district court to hear a full challenge to the constitutionality of the NSA's behavior.

"The government has pointed to no affirmative evidence ... that suggests that Congress intended to preclude judicial review," said Lynch.

[1] http://www.theguardian.com/world/2013/dec/27/judge-rules-nsa-phone-data-collection-legal

[2] http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf