The US National Security Agency (NSA) has been handed a defeat in appeals court. A three-judge panel in the Court of Appeals for the Second Circuit has ruled that the NSA phone records collection “exceeds the scope of what Congress has authorized” in Section 215 of the Patriot Act. However, the denial of a motion filed by the American Civil Liberties Union to suspend data collection by the NSA has been upheld, so data collection will continue for the time being.
Section 215 of the Patriot Act allows the FBI to obtain court orders through the Foreign Intelligence Surveillance Court to confiscate or collect data that assists in an investigation ostensibly undertaken to protect against terrorism. Orders are granted ex parte and reasons for granting orders are generally never disclosed, and are under a mandated gag order for at least a year, but practically, this has been extended in perpetuity.
NSA is said to collect metadata on less than 30 percent of all American phone calls, with the Wall Street Journal claiming 20 percent. It is also said that the data collection is significantly down from 2006, when the NSA recorded details for almost all calls, but it plummeted down to the current figure last summer because of callers opting to use cellular networks rather than landlines. There are apparently plans to request carriers that do not provide data to the NSA via a court order, something which would raise the percentage of call records collected close to original levels.
Denying the current legal justification that the US has been using to authorize bulk phone data collection as relevant to terrorism probles, the appeals judges wrote that “Such an expansive concept of ‘relevance’ is unprecedented and unwarranted” and “government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.”
Despite presidential reforms announced in January of 2014, and ongoing concerns of Americans, Obama continues to argue for the continued existence of the data collection programs by talking about earlier intelligence methods in times of conflict. He has said of the program that “those who are troubled by our existing programs are not interested in a repeat of 9/11, [and] those who defend the programs are not dismissive of civil liberties,” advising that the challenge was to get “the details right” — a signal that compromise between the two positions was likely to be the path forward.
The National Security Council is evaluating the ruling by the appeals court. A spokesman said that “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.”
