In Landmark Ruling, Federal Appeals Court Finds NSA Bulk Collection of Americans' Phone Data Illegal

Posted May 13, 2015

MP3 Interview with Shahid Buttar, executive director with the Bill of Rights Defense Committee, conducted by Scott Harris

nsa

In landmark ruling on May 7, the 2nd U.S. Circuit Court of Appeals in Manhattan found that the National Security Agency’s bulk collection of Americans' phone metadata is illegal. The court said that the NSA program, first revealed by former government contractor Edward Snowden in 2013, was not authorized by Section 215 of the USA Patriot Act signed into law in the weeks following the 9/11 terrorist attacks.

Circuit Judge Gerard Lynch wrote in his ruling for a three-judge panel that "such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.” While the court did not rule on the surveillance program’s constitutionality, it noted that Section 215 of the Patriot Act – that both the Bush and Obama administrations said permitted the NSA’s spy operations – will expire on June 1.

The federal appeals court ruling coinciding with the coming expiration of Section 215, could provide advocates of repealing or reforming Section 215 needed momentum. GOP Senate Majority Leader Mitch McConnell and Intelligence Committee Chairman Richard Burr both support a measure to extend Section 215 and other parts of the Patriot Act through 2020. But in the House of Representatives, the Judiciary Committee voted 25-2 to adopt the USA Freedom Act that would end the NSA bulk collection of telephone data. The bill is expected to pass the full House with support from President Obama. But NSA whistleblowers and many civil liberties advocates support another bill, the Surveillance State Repeal Act, that would completely repeal the 2001 PATRIOT Act that authorizes many other surveillance programs targeting the Internet and financial transactions. Between The Lines' Scott Harris spoke with Shahid Buttar, executive director with the Bill of Rights Defense Committee, who assesses the importance of the recent federal appeals court ruling on NSA dragnet surveillance and the effort now underway in Congress to repeal or reform these government spy programs.

SHAHID BUTTAR: The significance of Thursday's (the May 7, 2015) decision is that for the first time – a sample of district courts have attempted to do this before – an appellate court, the 2nd Circuit that has ruled that the surveillance program, the first of the many surveillance programs revealed by Edward Snowden – that it's illegal. Not that it's unconstitutional, which is to say they didn't decide that Congress can't authorize it. They just decided that Congress hadn't authorized it and that the Patriot Act did not suffice to justify or provide a legal basis for mass surveillance.

I think it's going to be really interesting to see how it interfaces with the congressional debate. That section is set to expire in June and there are several members in Congress, and there are several members of Congress – including the Senate majority leader and the chair of the Senate intelligence committee who would seek to – they have a bill that would reauthorize those provisions without any reforms basically trying to extend an illegal program.

BETWEEN THE LINES: Shahid, as you look at the prospects for reform or outright repeal of Section 215 of the Patriot Act, maybe you can run down some of the options here. One of the legislative bills that addresses the Patriot Act Section 215 is the USA Freedom Act, which is a reform bill. Then there's the Surveillance State Repeal Act, which goes a lot further and is favored by a lot of groups, such as yours. Maybe you can talk about those two options.

SHAHID BUTTAR: Let me contextualize the full range. The majority leader and the Senate intelligence committees' bill, which would basically extend the expiring provisions without any requirements. But you could describe that as legislators not showing up for work, accepting getting lied to by executive officials, accepting executive secrecy, writing blank checks despite documented abuses and abdicating their constitutional role.

The Surveillance State Repeal Act is the other end of the spectrum. That's the bill that would remove the Patriot Act entirely from the books, as well as the 2008 law that made it much worse. There were amendments to a previous law, called the Foreign Intelligence Surveillance Act. Those are the twin statutory pillars on which the NSA dragnet rests and the Surveillance State Repeal Act would – as it's described appropriately – appeal both of them.

You might describe it as shifting the burden of proof to require that agencies to justify the expansion of their surveillance powers from a constitutional baseline, instead of a baseline contrived by a decade of executive lies in conference.

This also should not be controversial because back in 2001 when the Patriot Act was first enacted, it was adopted by Congress before the congressional investigation into the 9/11 attacks had been completed. And by the time that had been completed what Congress found was that data collection and the agency collection powers were not the intelligence failures that enabled the attacks. The intelligence failures that enabled the attacks were failures of data analysis and sharing.

And the Patriot Act and the Foreign Intelligence Surveillance amendments did very little to address the real problem. What they did was fix a nonproblem – that is, was data collection – and create very real problems in the specter of unreviewed, secret, potentially abused surveillance. We know many cases where, for instance, NSA agents have the government's powerful surveillance tools to spy on their former lovers and ex-wives and the idea of mass surveillance facilitating stalking and domestic violence is disturbing, to say the least.

If you strip away the legal mumbo-jumbo, is the question of whether or not the government can examine you when you haven't done anything wrong? Whether or not the government can examine you even if no one thinks you've done anything wrong – what mass surveillance, through its various mechanisms, whether it's surveillance drones, whether it's the NSA dragnet, whether it's the NSA metadata program in Section 215 – what they all have in common is ambient collection. Untargeted collection. Surveillance of everyone, all the time, randomly. And that's the problem that is quite frankly, so constitutionally offensive.

But I think it's fair to say that the members of Congress who have voted now half a dozen times – to first enact the Patriot Act and then reauthorize it – every one of them has been derelict in their oath of office in defending the Constitution against all enemies foreign and domestic.

For more information on the Bill of Rights Defense Committee to repeal or reform Section 215 of the USA Patriot Act, visit bordc.org.

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