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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