Governance & Risk Management , Privacy , Standards, Regulations & Compliance

Appeals Court: NSA Lacks Bulk Collection Authority

Ruling Says Patriot Act Didn't Authorize NSA to Create Program
Appeals Court: NSA Lacks Bulk Collection Authority
NSA headquarters

A federal appeals court has ruled that the National Security Agency's controversial collection of metadata of Americans' telephone calls is not authorized by the Patriot Act.

See Also: EU-US Data Privacy Framework: Your Questions Answered

The May 7 ruling comes as Congress is considering whether to extend or eliminate the provision in the Patriot Act, set to expire June 1, that the Bush and Obama administrations used to justify the NSA program (see The Implications of the NSA Ruling).

The Second Circuit Court of Appeals in New York did not order the NSA to stop the bulk collection program, noting that Congress is considering legislation that would either extend the program or kill it. The decision highlights "the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary," Judge Gerald Lynch wrote in the 97-page opinion.

The court says the case exemplifies "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. Reconciling the clash of these values requires productive contribution from all three branches of government, each of which is uniquely suited to the task in its own way."

Applying Decision to Other Programs

The appellate court considered a suit brought by the American Civil Liberties Union. The ACLU's lead counsel in the case says the ruling extends beyond the bulk collection program. "The same defective legal theory that underlies this program underlies many of the government's other mass-surveillance programs," says ACLU Deputy Legal Director Jameel. "The ruling warrants a reconsideration of all of those programs, and it underscores once again the need for truly systemic reform."

Ned Price, director for strategic communications at the National Security Council, says the White House is evaluating the decision. "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," Price says. "We continue to work closely with members of Congress from both parties to do just that, and we have been encouraged by good progress on bipartisan, bicameral legislation that would implement these important reforms."

The decision comes as Congress considers competing legislation either to extend the metadata collection program, at least temporarily, or end it. The program was authorized by the Patriot Act, which Congress enacted in the wake of the Sept. 11 terrorist attacks. Section 215 of the Patriot Act, that two administrations used to justify the bulk collection program, is set to expire on June 1. The secret program was unveiled nearly two years ago from documents leaked by former NSA contractor Edward Snowden (see New Snowden Leak Details NSA Collection Program.

Senate Majority Leader Mitch McConnell, R-Ky., and Intelligence Committee Chairman Richard Burr, R-N.C., have offered legislation to reauthorize the Patriot Act without changes.

But a growing number of lawmakers and outside groups from the political left and right seek to end the bulk-collection program. On April 30, the House Judiciary Committee overwhelmingly approved the USA Freedom Act that would prohibit the NSA's previously secret practice of conducting large-scale, indiscriminate collection of communications records, such as all records from an entire state, city or ZIP code (see Panel Votes to End Bulk Collection). It also would allow authorities to seek court approval to obtain specific communications records based on a threat to national security.

The sponsors of the Senate version of the USA Freedom Act, Patrick Leahy, D-Vt., and Mike Lee, R-Utah, issued a statement saying they will not consent to the extension of the program. "The dragnet collection of Americans' phone records is unnecessary and ineffective, and now a federal appellate court has found that the program is illegal," the statement says. "Congress should not reauthorize a bulk collection program that the court has found to violate the law."

About the Author

Eric Chabrow

Eric Chabrow

Retired Executive Editor, GovInfoSecurity

Chabrow, who retired at the end of 2017, hosted and produced the semi-weekly podcast ISMG Security Report and oversaw ISMG's GovInfoSecurity and InfoRiskToday. He's a veteran multimedia journalist who has covered information technology, government and business.

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