Ride the Lightning

Second Circuit Rules That NSA Phone Data Collection is Illegal

May 11, 2015

Let me start with "Hurray!" I wish all mornings contained such good news. Last Thursday, The New York Times reported that a three-judge panel for the U.S. Court of Appeals for the Second Circuit held that a provision of the USA Patriot Act known as Section 215 cannot be legitimately interpreted to allow the bulk collection of domestic calling records.

The 97-page ruling will certainly increase tension in Congress because that provision is set to expire in June. The ruling did not include an injunction ordering the program to cease.

This is the first time a higher-level court in the regular judicial system has reviewed the program.

The data collection had repeatedly been approved in secret by judges serving on the Foreign Intelligence Surveillance Court, known as the FISA court, which oversees national security surveillance. Those judges, who hear arguments only from the government, were willing to accept an interpretation of Section 215 that the appeals court rejected.

The court, in a unanimous ruling written by Judge Gerard E. Lynch, held that Section 215 “cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.” It declared the program illegal, saying, “We do so comfortably in the full understanding that if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.”

The appeals court sent the matter back to a Federal District Court judge to decide what to do next. The government could appeal the ruling to the full appeals court, or to the Supreme Court. Parallel cases are pending before two other appeals courts that have not yet ruled.

There is furious debate in Congress (when is there not?) about what to do and it's pretty hard to read the tea leaves at the moment. Stay tuned.

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