Court Rules Government’s Collection of All Phone Records is Illegal

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Summary: A federal court has determined that the Obama administration’s definition of “relevant” is too broad when it comes to compiling the phone records of American citizens.

According to the Daily Beast, a federal appears court ruled on Thursday that the government’s collection of the phone records of every single American is illegal. In addition, the court said that the Obama administration’s overly broad interpretation of its own intelligence-gathering powers creates the potential for privacy abuses, as well as the collection of everything from social media posts to private medical records.

  

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The three-judge panel for the U.S. Court of Appeals for the Second Circuit found that the Patriot Act does not grant the NSA the ability to store years’ worth of telephone metadata, which logs calls between numbers, the length of each call, and where the call occurred.

According to the New York Times, the most important message the decision sends is that Congress could not have intended to approve a program whose true scope no one outside of the NSA truly comprehended, until Edward Snowden revealed its nature to the world.

Intelligence officials have argued that the program is necessary to stop terrorist attacks. Senator Richard Buff, the chairman of the Senate Intelligence Committee, said, “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. 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.”

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Both independent reviewers of the programs and critics of the government’s actions have questioned whether it is necessary for antiterrorism procedures. These individuals have warned that the collection of so much information, most of which is not linked to terrorist activity, is an unnecessary breach of privacy for Americans and violates their right to privacy and protection from unreasonable search and seizure.

The timing of the hearing was not a coincidence. Congress is currently discussing changes to the program, which the administration argued was proper under Section 215 of the Patriot Act. In June, Section 215 will expire.

In the opinion, the judges wrote, “This case serves as an example of the increasing complexity of balancing the paramount interest in protecting the security of our nation 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 not persuaded by the government’s arguments, but they did not order that it be stopped 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.”

Ned Price, a National Security Council spokesperson, said that the administration is “in the process of evaluating” the decision. In a statement, he said, “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.”

Congress will now have to amend the program in a way that the courts will allow. A collection of civil liberties advocates brought the case against the phone records program. The groups consider the ruling a success in the debate over national security and the privacy of American citizens.

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

At the center of the case was the interpretation of “relevant” and whether any and all phone records, current records or future records, could be relevant in a terrorism investigation.

Obama administration attorneys argued that they were relevant, but the judges said that the government took an “expansive concept” of the meaning of relevance, which was “unprecedented and unwarranted.”

The NSA systems are too complex to prevent the deletion of data.

The judges noted, “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 sheer volume of information sought is staggering…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.”

In fact, the language of the statute itself demonstrates that the argument is flawed, according to the judges. The statute “…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.”

The judges even included Oxford English Dictionary’s definition of “investigation,” and noted that the language of the statute focuses on “the specificity of a particular investigation—not the general counterterrorism intelligence efforts of the United States government.”

The judges were most concerned with the broad, unbound nature of the metadata program. Additionally, Section 215 offers virtually no limits to the information on Americans that could be collected. They said, “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. 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 phone records are different from regular subpoenas or search warrants because those orders usually seek information about a specific individual or corporation, or are limited by a period of time. Instead, the judges said “The orders at issue here contain no such limits.”

Additionally, the judges rejected that the orders were similar to grand jury subpoenas. “The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program. They added that the government’s definition of “relevance” would include all counterterrorism investigations under one umbrella: “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.”

In 2013, Snowden said, “Mission accomplished; I already won.”

Adam Schiff, the top Democrat on the House Intelligence Committee, said that the 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 added that he hopes that, next week, the House will pass legislation that does this, 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.” The court opinion has no immediate effect, because, according to the Los Angeles Times, the court will allow Congress to decide whether it will end or replace the program.

Schiff and others who agree with him will likely be rebutted by Republicans, who argue that such program would have prevented the devastating impacts of the 9/11 attacks. Senator Marco Rubio said, “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 Tom Cotton, in response to reports that gunmen in Garland, Texas had communicated with an ISIS supporter from Somalia, argued, “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.”

Source: The Daily Beast

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