2nd Circuit Ruling Against NSA on Section 215 Cheers PCLOB Members

The lawsuit against the NSA and others was filed days after former NSA contractor Edward Snowden revealed the bulk collection program. The decision is the first appeals court ruling on the program, ACLU Executive Director Anthony Romero said. “The impact of this ruling will extend far beyond the mass phone records program and call into question the legality of many other government mass surveillance programs -- and truly demonstrate the need for systemic reform.” The decision reaffirms that “Congress never intended Section 215 to allow bulk collection,” said Rep. Jim Sensenbrenner, R-Wis., author of the USA Patriot Act.

The White House is evaluating the decision, National Security Council Assistant Press Secretary Ned Price emailed us. “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.” The White House will “continue to work closely with members of Congress from both parties,” and is “encouraged by good progress on bipartisan, bicameral legislation,” he said. Sen. Susan Collins, R-Maine, asked Attorney General Loretta Lynch during a budget hearing Thursday whether the Department of Justice would appeal. “Section 215 has been a vital tool in our national security arsenal,” Lynch said, and DOJ modified the program to keep up efficacy while preserving privacy.

PCLOB member James Dempsey said he's “very pleased” the 2nd Circuit's ruling mirrored what he, PCLOB Chairman David Medine and fellow member Patricia Wald voted for in recommending the Section 215 program end. “The words of the statute don’t bear the weight the government tried to put on it,” Dempsey said. The court agreed the program was “not statutorily authorized,” he said. In a democratic society, the powers exercised by the government should match the publicly stated law as passed by Congress or adopted by the courts in publicly released opinions, he said.

“I can’t imagine too many people in or out of the intelligence community being too surprised” by the decision, Wald said. The government is required to operate within the constitutional framework, she said. Even if a program is very vital, it has to be done in the right way, she said. The opinion also found that Americans whose phone numbers were collected and surveilled had standing and that anyone whose number was collected had enough standing to claim injury, even if that number wasn’t used in an investigation, Wald said.

Privacy Concerns Linger

The ruling leaves much work ahead for privacy advocates, they said. It "only addresses the tip of the iceberg," said Demand Progress Policy Director Daniel Schuman. It’s unknown how the ruling will be used in other contexts, whether the passage of USA Freedom could change the court’s opinion or how other circuit courts will rule, Schuman said. While the ruling is “good news right now,” Schuman said, USA Freedom “falls short” and surveillance programs such as the Section 702 of the Foreign Intelligence Surveillance Act (FISA) and executive order 12333 need to be addressed.

Circuit Judge Gerard Lynch wrote in the opinion that “Congress is better positioned than the courts to understand and balance the intricacies and competing concerns involved in protecting our national security, and to pass judgment on the value of the telephone metadata program as a counterterrorism tool.”

“The district court erred in ruling that § 215 authorizes the telephone metadata collection program,” Lynch wrote. The 2nd Circuit said the “telephone metadata program exceeds the scope of what Congress has authorized and therefore violates § 215,” he said. In a concurring opinion, Justice Robert Sack wrote that the court’s decision was based on reading of a federal statute, “not the Constitution,” which means “Congress can in effect overrule it.” Enacting a statute that amends or supplements the portion of Section 215 that “until now, has been interpreted to authorize the NSA’s bulk collection program would likely do the job,” Sack said. “Alternatively, Congress might simply terminate the program.”

Legislators' Differing Views

USA Freedom Act authors House Judiciary Committee Chairman Bob Goodlatte, R-Va., ranking member John Conyers, D-Mich., Sensenbrenner and Rep. Jerrold Nadler, D-N.Y., released a joint statement saying the court’s ruling confirms that bulk collection is not authorized and that “straight reauthorization of the bulk collection program is not a choice for Congress.” The representatives encouraged their colleagues in the Senate to not waste time defending Section 215 and urged them to pass a version of the USA Freedom Act “as soon as possible.”

A distorted view of the U.S. counterterrorism program has been painted since the “unlawful leaks,” McConnell said Thursday on the Senate floor. Since Sept. 11, 2001, FISA has been “critically important in keeping us safe,” he said. “According to the CIA, had these authorities been in place more than a decade ago, they would likely have prevented 9/11.” Critics of Section 215 proposed the USA Freedom Act, which “they say will keep us safe while protecting our privacy,” McConnell said. “It will do neither,” he said. USA Freedom replaces Section 215 with an untested, untried and more cumbersome system, and doesn’t end bulk collection of call data, McConnell said. The NSA bulk phone metadata program is constitutional, Nunes said. “In light of today's ruling, I look forward to seeing further consideration of this matter by the courts,” he said.

“Security is essential to a functioning democracy,” said Sen. Ed. Markey, D-Mass., but “privacy is the cornerstone of freedom.” Markey won't "support a clean extension of this program,” he said.

Sens. Ron Wyden, D-Ore., and Martin Heinrich, D-N.M., said Republican Senate leaders are trying to extend Section 215 for five years. They and a bipartisan coalition in Congress will “fight to block any extension of this bill that does not include major reforms and end bulk collection,” the two said. “Senator McConnell should honor the court's decision and abandon his plan to reauthorize Section 215,” Free Press Action Fund Policy Director Matt Wood said. “Congress needs to let Section 215 expire and get serious about reforming surveillance programs that violate the free speech and privacy rights of so many people."

“The court crushed every argument the Department of Justice invoked in support of the bulk collection program,” Center for Democracy & Technology Advocacy Director Harley Geiger said. “Members of Congress supporting straight reauthorization of Section 215 of the PATRIOT Act are trying to entrench a useless mass surveillance program that courts deemed illegal, Congress never intended, and the American public does not support." Information Technology and Innovation Foundation Vice President Daniel Castro agreed that Congress should prohibit bulk collection and government overreach, increase transparency in national security orders and the FISA court opinions, and provide oversight and accountability to protect civil liberties and national security.