Appellate court rules against legality of mass surveillance

As Congress dithers over what to do with the National Security Agency’s database of Americans’ phone records, a federal appellate court ruled on May 7 that the whole enterprise was illegal in the first place. Although three lower courts came to varying conclusions about the program, the unanimous and detailed (nearly 100-page) ruling is the first from an appeals court. In the immediate term, it puts a thumb on the scale of reform efforts in Congress. The decision also calls into question other dragnet programs that the NSA and other government agencies may be running.

Just days after the first bombshell from former NSA contractor Edward Snowden’s disclosures — the secret court order requiring Verizon to give the NSA, on a daily basis, records of all domestic and international phone calls carried on its lines — the American Civil Liberties Union sued to enjoin the program. The ACLU contended that the program was not permitted by the terms of Section 215 of the Patriot Act, which was claimed as its basis. Moreover, the ACLU argued, the program violated the Fourth Amendment because the NSA was amassing information about Americans without any suspicion that they were involved in criminal or terrorist activity.

Section 215 of the Patriot Act authorizes the government to obtain business records (such as those of phone companies, banks or Internet service providers) that are “relevant” to “an authorized investigation” of international terrorism. The Foreign Intelligence Surveillance Court has authorized the secret program at least since 2006, accepting the government’s theory that all phone records were relevant because at some point in the future the NSA might identify some relevant records among them. The program has been renewed 41 times thus far. 

But the court of appeals — which, unlike the secret court, had the benefit of views opposing the government — found that this interpretation would leave the program without any limits at all. Reviewing other legal proceedings in which the relevance standard is used, the court found the Section 215 program to be an outlier. The closest analogy is the subpoenas used to find information relevant to a crime being investigated by a grand jury, which can sweep up large quantities of records. Grand jury subpoenas, however, are constrained by their linkage to a single (although sometime expansive) criminal investigation and to a specified period. The appeals court found that the phone records program vacuums up exponentially more information than these subpoenas. It is also different in quality because it gathers up information regardless of whether it is relevant to a particular terrorism investigation. In essence, the court found, the government was creating a database of Americans’ information that might be relevant to its counterterrorism efforts — a result not permitted by Section 215.

Because the program was found illegal under the very law that was claimed as its basis, the court didn’t address the constitutional questions. It also didn’t enjoin the program, instead sending the case back to the lower court to decide what to do next.

By taking this route, the court left the door open for Congress to act before Section 215 expires at the end of this month. Simply renewing the law (an idea Senate Majority Leader Mitch McConnell has proposed and continues to defend) doesn’t appear to be a likely outcome in the immediate wake of the ruling. Rather, the opinion should be perceived as supporting reform proposals such as the USA Freedom Act, which has strong support in the House of Representatives. It may even boost more sweeping reform proposals that have been introduced in the House.

Beyond the fate of the phone record program, the appeals court decision has important ramifications for other dragnet programs that have relied on a similarly overbroad reading of the legal standard of relevance. In the last couple of years, several other data-collection programs have come to light, including a discontinued NSA effort to collect information about Americans’ Internet activity, a defunct Drug Enforcement Agency database of two decades’ worth of phone calls from the U.S. to 116 countries and a CIA program to collect financial information. Intelligence officials are frequently cited as saying these are just the tip of the iceberg. The court’s reasoning applies to programs that amass these other types of records as well.

Decisions are expected from two other appeals courts on whether the NSA is permitted to keep its phone-call database, and the matter will likely make its way to the Supreme Court. In the meantime, though, the legality of secret dragnet surveillance is seriously — and rightly — in doubt.