Appeals court rules against NSA phone records collection

The NSA's phone records program violates U.S. law because it "exceeds the scope of what Congress has authorized," a three-judge panel for the U.S. Court of Appeals for the Second Circuit has ruled.

The appeals court vacated a December 2013 ruling by a district court judge who granted the government a motion to dismiss the case, but upheld the district court decision to deny plaintiffs, including the American Civil Liberties Union, a preliminary injunction to halt the so-called phone metadata collection program.

The appeals court's action Thursday sends the ACLU's lawsuit back to be heard by the U.S. District Court for the Southern District of New York. It's unclear what the next move of President Barack Obama's administration is.

Section 215 of the Patriot Act, an antiterrorism law passed weeks after the Sept. 11, 2001, attacks on the U.S., allows the NSA to collect business records, phone records and "any tangible thing" that government officials have reasonable grounds to believe are "relevant" to a terrorism investigation.

But the NSA's bulk, ongoing collection of nearly all U.S. phone records depends on an expansive definition of relevance, Judge Gerard Lynch wrote for the panel.

"The government takes the position that the metadata collected -- a vast amount of which does not contain directly 'relevant' information, as the government concedes -- are nevertheless 'relevant' because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant," Lynch wrote. "We agree with appellants that such an expansive concept of 'relevance' is unprecedented and unwarranted."

The ACLU applauded the appeals court decision, with staff attorney Alex Abdo calling it "a resounding victory for the rule of law."

The NSA has, for years, "secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority," Abdo said in a statement. "The court rightly rejected the government's theory that it may stockpile information on all of us in case that information proves useful in the future. Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society."

The Obama administration is evaluating the court's decision, said Edward Price, director for strategic communications at the National Security Council. The administration is working with Congress to set up a more targeted collection program, he said by email.

"Without commenting on the ruling today, 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 added.

Under the phone records program, the NSA collects so-called metadata, information about who telephone users are calling and the frequency and duration of calls, but not the call content.

The appeals court declined to tackle the ACLU's assertion that the phone records program violates the Fourth Amendment of the U.S. Constitution, protecting the country's residents against unreasonable searches and seizures. Instead, the court focused on whether Congress had authorized the program in the Patriot Act.

The constitutional claims lead to some "vexing" questions, the appeals court said. "Because we conclude that the challenged program was not authorized by the statute on which the government bases its claim of legal authority, we need not and do not reach these weighty constitutional issues," the court said. "The seriousness of the constitutional concerns, however, has some bearing on what we hold today, and on the consequences of that holding."

Following the decision, Democratic Senators Ron Wyden of Oregon and Martin Heinrich of New Mexico called on the Obama administration to immediately kill the telephone records program. Even though Obama, in January 2014, called for Congress to limit the scope of the program, the U.S. Department of Justice and the Office of the Director of National Intelligence have continued to ask a surveillance court to renew the program every 90 days.

The court decision Thursday is a "huge step for individual Americans' rights," Wyden said in a statement. "This dragnet surveillance program violates the law and tramples on Americans' privacy rights without making our country any safer. It is long past time for it to end."

If the president doesn't end the program, Congress should, he added. "Now that this program is finally being examined in the sunlight, the executive branch's claims about its legality and effectiveness are crumbling," Wyden added.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.