Court Rules Big Brother Is Too Big to Be Legal

A federal court warns the government’s argument for mass surveillance would let it collect everything on everyone forever.

In forceful and at times reproachful language, a federal appeals court on Thursday ruled that the government’s collection of all Americans’ phone records is illegal, and that the Obama administration’s overly broad interpretation of its intelligence-gathering powers opens the door to potential privacy abuses and the possible collection of everything from medical records to social media musings.

A three-judge panel for the U.S. Court of Appeals for the Second Circuit found that the Patriot Act does not permit the NSA to store years’ worth of so-called telephone metadata, which shows calls between numbers, how long they lasted, and where they occurred.

U.S. intelligence officials have said that the program, which was exposed in 2013 by leaks from Edward Snowden, is a vital tool for stopping terrorist attacks.

“The [terrorist] threat is greater today, domestically and around the world, than it’s ever been. And the argument that we will be consumed with is whether we do away with tools that have been effective for law enforcement to protect America,” Senator Richard Burr, the chairman of the Senate Intelligence Committee, said Thursday after the decision. “What do you get through this program? You get the safety and security of knowing that we’re doing everything we possibly can to identify a terrorist.”

Critics of the program, as well as independent reviewers, have questioned those assertions and warned that the collection of so much information, most of which won’t have any bearing at all on a terrorism case, is an unnecessary intrusion on Americans’ right to privacy and protection from unreasonable search and seizure.

The momentousness of the debate was not lost on the judges, nor was the timing. Right now, Congress is debating changes to the program, which the administration had argued is allowed under Section 215 of the Patriot Act. Section 215 expires in June.

“This case serves as an example of the increasing complexity of balancing the paramount interest in protecting the security of our nation,” the judges wrote, “with the privacy interests of its citizens in a world where surveillance capabilities are vast and where it is difficult if not impossible to avoid exposing a wealth of information about oneself to those surveillance mechanisms.”

The judges were unpersuaded by the government’s legal rationale for collecting all Americans’ phone records in bulk, but they stopped short of ordering the program be halted because of the debate in Congress.

“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 wrote.

Ned Price, a spokesperson for the National Security Council, said in a statement that the administration is “in the process of evaluating” the court’s decision.

“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.”

The pressure is now on Congress to amend the program in such a way that would pass muster with the courts. The case against the phone records program was brought by a collection of civil liberties advocates, who celebrated what they considered a landmark ruling in debate over national security and privacy.

“The current reform proposals from Congress look anemic in light of the serious issues raised by the Second Circuit,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “Congress needs to up its reform game if it’s going to address the court’s concerns.”

At the heart of the case was the government’s interpretation of the term “relevant,” and specifically whether any and all phone records, whether they exist now or have yet to be created, could be relevant to a terrorism investigation.

Obama administration lawyers had argued yes, but the judges said the government had taken an “expansive concept” of the meaning of relevance, calling its interpretation “unprecedented and unwarranted.”

“The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,” the judges wrote.  

“The sheer volume of information sought is staggering,” they continued, noting that “while search warrants and subpoenas for business records may encompass large volumes of paper documents or electronic data, the most expansive of such evidentiary demands are dwarfed by the volume of records obtained pursuant to the orders in question here.”

The language of the statute clearly shows that the government’s argument is flawed, the judges wrote. It “does not permit an investigative demand for any information relevant to fighting the war on terror, or anything relevant to whatever the government might want to know. It permits demands for documents ‘relevant to an authorized investigation.’ The government has not attempted to identify to what particular ‘authorized investigation’ the bulk metadata of virtually all Americans’ phone calls are relevant.”

To emphasize how far afield the judges thought the government had gone, they cited the definition of the word “investigation” from the Oxford English Dictionary, and pointed out that the language of the law itself talks about “the specificity of a particular investigation—not the general counterterrorism intelligence efforts of the United States government.”

It was this unbounded, broad nature of the metadata program, which seeks not only all existing records, but all future records, that the judges found most problematic. And, they said, in the government’s interpretation of Section 215, there are practically no limits to the kinds of information on Americans that the authorities could one day collect.

“If the government is correct, it could use [Section] 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e‐mail and social media information) relating to all Americans.”

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” the judges said. “Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism. But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.”  

The orders for all telephone records are fundamentally different from typical subpoenas or search warrants, the judges said. Those orders typically seek information about one person or corporation, or are hemmed in by a particular period in time.

“The orders at issue here contain no such limits,” the judges wrote. They also rejected the government’s assertion that the secret court orders to collect all telephone records are analogous to grand jury subpoenas, which allow the government to collect a broad amount of information to look for evidence of a crime, including evidence that might prove to be relevant.

“The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program,” the judges wrote. Elsewhere in the ruling, they concluded that the government’s sweeping definition of relevance would essentially lump all counterterrorism investigations into one big basket.  

“Put another way, the government effectively argues that there is only one enormous ‘anti‐terrorism’ investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.”

Focus now turns to lawmakers, who are trying to craft some compromise that would allow the government to still have access to telephone records, perhaps keeping them stored for several years in the databases of phone companies.

Adam Schiff, the top Democrat on the House Intelligence Committee, said the court’s decision “should help propel Congress to end the program as it is currently structured, and only allow the government to request data from the telephone companies after individualized court approval.”

Schiff said he hopes the House next week will pass legislation that does that, and that “Congress will use both our deadline and this court opinion as the catalyst for an end to bulk collection and the beginning of serious reform.”

Schiff and likeminded lawmakers will find stiff opposition from Republican hawks, who want to continue a system of broad metadata collection on the basis that it could have prevented or mitigated the toll of the terrorist attacks on 9/11.

“If this program had existed before 9/11, it is quite possible that we would have known that the 9/11 hijacker was living in San Diego and was making phone calls to an al Qaeda safe house in Yemen... there is a probability that American lives could have been saved,” Senator Marco Rubio said.

Referring to reports that the gunmen in Garland, Texas, had communicated with an ISIS supporter in Somalia, Senator Tom Cotton argued Thursday that their “conduct illustrates why this program is so important. It helps close the gap that existed between foreign intelligence gathering and stopping attacks at home before 9/11. This is the gap that contributed in part to our failure to stop the 9/11 attacks.”

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