NSA's Phone Records Program Is Illegal, Federal Court Rules

| by Kathryn Schroeder

The collection of millions of Americans’ phone records by the National Security Agency (NSA) is illegal, according to the Second Circuit Court of Appeals in Manhattan, New York on Thursday.

The decision has been made just as Congress is deciding whether to renew the underlining law that justifies the program, The Hill reports.

“[That program] exceeds the scope of what Congress has authorized,” Judge Gerard Lynch wrote on behalf of the three-judge panel. “[The law] cannot be interpreted in a way that defies any meaningful limit.”

The collection of “bulk telephony metadata” by the NSA was first disclosed by former NSA contractor Edward Snowden, according to Reuters. It was originally stated to be a program that would help fight terrorism.

Lynch said Congress did not authorize the NSA program under a section of the Patriot Act regulating how the information may be collected to fight terrorism.

Under the Patriot Act, the government is allowed to collect “any tangible things” that they may prove are “relevant to” an investigation into suspected terrorists.

The Foreign Intelligence Surveillance Court who oversees government intelligence operations believes the collection of “metadata” from phone records is allowed under that mandate.

Lynch and his fellow judges disagreed.

“If the government is correct, it could use § 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,” Lynch wrote.

"Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans," Lynch continued. “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. There is no evidence of such a debate."

Republican Rep. Jim Sensenbrenner of Wisconsin, who wrote the Patriot Act, said he never intended to authorize the NSA’s phone records program.

There are three appeals courts currently examining challenges to the NSA’s phone records program, including the Second Circuit. It is possible that the case may go to the Supreme Court.

Opponents of the NSA's phone records collection program claim it is an invasion of privacy for American citizens.

It is possible that Congress may reauthorize the existing law to allow the program, a reality Lynch accepted in the judges’ decision.

“If Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously,” Lynch wrote. “Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards."

Attorney General Loretta Lynch responded to the ruling, saying that the phone records program has been a "vital tool in our national security arsenal," The Hill reports. She added that the Justice Department is reviewing the decision.

Sources: The Hill, Reuters

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