The National Security Agency does not have legal authority to secretly collect and store data on all U.S. telephone calls, a federal appeals court ruled Thursday, calling the highly classified surveillance program “an unprecedented contraction of the privacy expectations of all Americans.”
The unanimous decision by the U.S. 2nd Circuit Court of Appeals, based in New York, said the intelligence agency far exceeded its legal powers in collecting so-called metadata on calls by hundreds of millions of Americans who were not specific targets of counter-terrorism or espionage investigations.
The court's sharp rejection of the controversial NSA program, which was first disclosed publicly in 2013 in documents leaked by former NSA contractor Edward Snowden, puts new pressure on Congress to reform the agency's bulk collection of telephone data. The ruling significantly strengthens the hand of the program's opponents in Congress.
“This is a huge step for individual Americans' rights,” said Sen. Ron Wyden, (D-Ore.), an outspoken opponent of the program. “This dragnet surveillance program violates the law and tramples on Americans' privacy rights without making our country any safer.”
The decision has no immediate effect, however, since the three-judge panel agreed to let Congress decide whether to end or replace it in coming weeks. The provision in the USA Patriot Act that the NSA has relied on as authorization for government collection of phone records will expire on June 1 unless Congress votes to extend it.
A bipartisan bill in the House would amend the NSA program, and the White House has called for leaving call records with the nation's telephone companies. In the Senate, Majority Leader Mitch McConnell (R-Ky.) has pushed a plan to reauthorize the current program but has encountered opposition in both parties.
The White House said Thursday it was studying the court ruling. The administration could appeal to the Supreme Court, but if Congress resolves the issue, further legal proceedings might be moot.
President Obama “has been clear that he believes we should end [the program] as it currently exists by creating an alternative mechanism to preserve the program's essential capabilities without the government holding the bulk data,” Ned Price, a spokesman for the National Security Council, said in a statement.
The 97-page ruling, which overturns a lower court decision, comes from the first high-level court in the regular judicial system to review the NSA program.
Initially authorized by the Bush administration after the Sept. 11, 2001, attacks, the bulk collection of domestic phone data has been repeatedly approved since May 2006 by the Foreign Intelligence Surveillance Court, which meets in secret and issues classified rulings.
The NSA has secretly collected telephone numbers, phone call times, duration and other data, but not the actual conversations, for most calls made in the U.S. and from overseas under the disputed provision of the law, known as Section 215. The collection includes virtually all landline calls and some made from cellphones.
The three-judge panel said there was no evidence Congress meant to give the NSA such broad power when it passed Section 215, which allows the government to collect business records “relevant to an authorized investigation.”
“The overwhelming bulk of the metadata … concerns individuals who are not targets of an investigation or suspected of engaging in any crime whatsoever, and who are not even suspected of having any contacts with any such targets or suspects,” it reads.
The government argued that all call records are “relevant” because investigators need a complete history to search for phone numbers that terrorism suspects may have called.
NSA officials repeatedly have likened the searches to the proverbial needle in a haystack, saying they need the full haystack to search for the needle.
But the court found that the vacuuming of Americans' phone records for potential use in investigations violates long-accepted judicial procedures that require law enforcement agencies to show a court evidence that the target of an inquiry is engaged in specific criminal activity before surveillance is permitted.
U.S. phone companies are required under the program to turn over calling records “on an ‘ongoing daily basis' — with no foreseeable end point, no requirement of relevance to any particular point of facts, and no limitations as to subject matter or individuals covered,” the court said.
“Perhaps such a contraction [of privacy] is required by national security needs in the face of the dangers of contemporary domestic and international terrorism,” it added. “But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.
“Congress cannot reasonably be said to have ratified a program of which many members of Congress — and all members of the public — were not aware,” the decision said.
If the government view prevailed, the judges wrote, it could “collect and store in bulk any other existing metadata available in the private sector, including metadata associated with financial records, medical records, and electronic communications … of all Americans.”
After the Snowden disclosures prompted a public outcry, Obama proposed requiring phone companies to hold the records rather than the government. The NSA would need a court order to search the databases. But Congress has not acted on that proposal.
Obama said last year that he had instructed the NSA to limit searches of the phone records to two so-called hops of numbers. That means investigators can try to identify calls to or from a known terrorist, and then calls to and from those numbers. Previously, investigators could trace three hops.
The House is expected to approve legislation next week that would rein in aspects of the system.
Republican leaders in the Senate have generally supported the NSA program, and several continued to do so Thursday. But the issue continued to cleave both parties in unusual ways.
Sen. Marco Rubio (R-Fla.), a contender for the GOP presidential nomination, said “not one single documented case” of abuse of the NSA program had been found. “The solution is not to get rid of a program at a time when we know that the risk of home-grown violent extremism is the highest it's ever been,” he said.
But Sen. Rand Paul (R-Ky.), who also is seeking the Republican nomination, applauded the ruling as “a monumental decision for all lovers of liberty.” He urged the Supreme Court “to strike down the NSA's illegal spying program.”
Sen. Ted Cruz (R-Texas), another GOP presidential contender, said the ruling “confirms what the American public already knew… [that the NSA] went too far in collecting the phone records of Americans.”
The American Civil Liberties Union, which brought the suit on behalf of a group of phone company customers, called the decision “a resounding victory for the rule of law.”
“For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority,” said ACLU staff attorney Alex Abdo, who argued the case in September.
“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,” he said. “Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society.”