On Thursday, a decision was handed down by the Second Circuit Court of Appeals in the case of the ACLU v. Clapper (the NSA and the Obama Administration intelligence and defense officials, more or less). The conclusion: the mass collection of phone “metadata” by the National Security Agency exceeds the authority of the program as given by Congress. A previous decision by a lower court finding in favor of the government was thrown out. From the decision:
This appeal concerns the legality of the bulk telephone metadata collection program (the “telephone metadata program”), under which the National Security Agency (“NSA”) collects in bulk “on an ongoing daily basis” the metadata associated with telephone calls made by and to Americans, and aggregates those metadata into a repository or data bank that can later be queried. Appellants challenge the program on statutory and constitutional grounds. Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants’ constitutional arguments. We affirm the district court’s denial of appellants’ request for a preliminary injunction.
Beyond the legal jargon, the decision from the Second Circuit is one of three currently (or now formerly) active court cases challenging the constitutionality of the NSA’s telephone metadata collection and storage program. Writing for the court, Justice Gerard Lynch had some sharp words.
That telephone metadata do not directly reveal the content of telephone calls, however, does not vitiate the privacy concerns arising out of the government’s bulk collection of such data. Appellants and amici take pains to emphasize the startling amount of detailed information metadata can reveal “information that could traditionally only be obtained by examining the contents of communications” and that is therefore “often a proxy for content.” … For example, a call to a single‐purpose telephone number such as a “hotline” might reveal that an individual is: a victim of domestic violence or rape; a veteran; suffering from an addiction of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual’s social status, or whether and when he or she is involved in intimate relationships.
The judge points out, “Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.” Ultimately, the decision states that the phone record collection program violates the first and fourth amendments of the U.S. Constitution.
The NSA’s collection of telephone metadata is part of the Patriot Act, a law due for renewal this year and up for discussion in the current Congress. According to statements to The Hill, some of the writers of the Patriot Act, Rep. Jim Sensenbrenner (R-WI) among them, say that they never meant to authorize the program, and have legislation pending to request the information from private companies instead of a mass collection and storage.
Now that the intimate details of the program are known, and this decision may well be headed to the Supreme Court for consideration, Congress will need to be explicit if it intends to pass such invasive legislation:
“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.”
Stay tuned. This one ain’t over yet.