Newsletter
The 2nd Circuit U.S. Court of Appeals today just dropped a bombshell with its ruling that the NSA’s long-running telephone metadata bulk collection program was “not authorized” under Section 215 of the controversial USA PATRIOT Act, and is therefore outside the law’s legal boundary. It found that the program “exceeds the scope of what Congress has authorized,” and reversed a lower court’s ruling to the contrary.
The decision marks the first instance where a high court independent of the Foreign Surveillance Intelligence Court (FISA) has ruled the NSA program to be illegal. At the heart of its decision, the judges draw two critical conclusions: The first is that that ‘The people have standing’. Congress always intended for this sort of judicial review to occur – that the courts were supposed to be the branch to reign in such an indiscriminate form of surveillance program. The government’s position was that Congress established a limited appeal procedure for those affected by the NSA’s activities, because allowing mass legal action against the entities that cooperated with the NSA’s orders would lead to action “severely disrupt[ing] . . . the sensitive field of intelligence gathering for counterâ€terrorism efforts.” The court countered that such a potential for mass action would exist only when there was “expansive use” of Section 215 orders.
The second main point noted was that ‘The program is overbroad’. The government, in defense of the program, attempted to put it on firmer legal ground by comparing the program’s orders and grand jury subpoenas: both may request information in the course of a secret investigation having potentially broad scope. But the court rejected the analogy, on the grounds that the NSA’s program, unlike grand jury investigations, were sweeping up information about not a particular person or entity but a vast number of individuals, and over an effectively unlimited period of time (“an ongoing daily basis”, and stored possibly forever). The sort of examination of data the NSA undertakes as part of its collection procedure is not so much systematic as it is indiscriminate, the judges declared. Moreover, they determined that Congress actually intended to prevent Section 215 orders from being used in the absence of “any particular, defined information that would permit the initiation of even a preliminary investigation” by the standards of an FBI-conducted threat assessment. The judges were not willing to exercise judicial review and expand the legal definition of the word “relevant” in order to give the program wiggle room in their decision.
In their minds, the ball belongs on Congress’s side of the playing field now. Legislators are preparing to deliberate this year on changes to Section 215 and related framework, and we’ll be monitoring their progress.