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US NSA’s phone spying programme ruled illegal by appeals court

By Jonathan Stempel

A US spying programme that systematically collects millions of Americans’ phone records is illegal, a federal appeals court ruled on Thursday, putting pressure on Congress to quickly decide whether to replace or end a controversial programme aimed at fighting terrorism.

Ruling on a program revealed in 2013 by former government security contractor Edward Snowden, the 2nd US Circuit Court of Appeals in Manhattan said the Patriot Act did not authorise the National Security Agency to collect Americans’ calling records in bulk.

Circuit Judge Gerard Lynch wrote for a three-judge panel that Section 215, which addresses the FBI’s ability to gather business records, could not be interpreted to have permitted the NSA to collect a “staggering” amount of phone records, contrary to claims by the Bush and Obama administrations.

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” Lynch wrote in a 97-page decision. “We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate.”

The appeals court did not resolve the question of whether the surveillance was unconstitutional.

It also declined to halt the programme, noting that parts of the Patriot Act including Section 215 expire on June 1.

Lynch said it was “prudent” to give Congress a chance to decide what surveillance is permissible, given the national security interests at stake.

Enacted after the Sept. 11, 2001 attacks, the Patriot Act gives the government a wide variety of tools to investigate terrorism.

Thursday’s decision voided a December 2013 ruling in which US District Judge William Pauley in Manhattan found the NSA programme lawful. The appeals court sent the case back to him for further review.

NEXT STEP IN CONGRESS

Snowden, a former NSA contractor who lives as a fugitive in Russia, in June 2013 gave several media outlets classified information. Snowden exposed the agency’s collection of “bulk telephony metadata.” The data includes the existence and duration of calls made, but not the content of conversations.

U.S. Attorney General Loretta Lynch said at a Senate budget hearing on Thursday that NSA data collection was a “vital tool in our national security arsenal,” and that she was unaware of privacy violations under its existing program.

The 2nd Circuit is the first federal appeals court to rule on the NSA program’s legality. Federal appeals courts in Washington, D.C. and California are also considering the matter.

While the government could appeal Thursday’s decision, it may wait for Congress. If Congress changes Section 215, then courts may need to review what it does. But if it reauthorizes Section 215, the issue could end up before the Supreme Court.

Ned Price, a spokesman for the White House’s National Security Council, said President Barack Obama wants to end the NSA programme, and is encouraged by the “good progress” Congress is making to find an alternative that preserves its “essential capabilities.”

Last week, the House Judiciary Committee voted 25-2 in favor of the USA Freedom Act, which would end the bulk collection of telephone data, and the bill is expected to pass the full House.

A similar bill has been proposed in the Senate, but passage remains uncertain.

Majority Leader Mitch McConnell and Richard Burr, the Republican chairman of the Senate Intelligence Committee, have introduced legislation to extend Section 215 and other parts of the Patriot Act through 2020.

The existing NSA programme has repeatedly been approved in secret by a national security court established under a 1978 law, the Foreign Intelligence Surveillance Act.

“FISA has been critically important in keeping us safe in America,” McConnell said on Thursday.

COUNTER-PUNCH

Other senators welcomed Thursday’s decision.

Sen. Rand Paul, a Kentucky Republican and presidential candidate, tweeted that “phone records of law abiding citizens are none of the NSA’s business! Pleased with the ruling this morning.”

Another presidential candidate, Democratic Sen. Bernie Sanders of Vermont, tweeted that “the NSA is out of control and operating in an unconstitutional manner.”

In upholding the NSA programme in 2013, Pauley had called it a government “counter-punch” to terrorism at home and abroad.

Pauley ruled 11 days after US District Judge Richard Leon in Washington, D.C. said the “almost Orwellian” program might violate the Fourth Amendment. Leon issued an injunction to block the programme but put it on hold pending appeal.

Thursday’s decision did not resolve the ACLU’s claim that the NSA programme violated the bar against warrantless searches under the Fourth Amendment.

Lynch, though, did note the “seriousness” of the constitutional concerns over “the extent to which modern technology alters our traditional expectations of privacy.”

ACLU lawyer Alex Abdo welcomed the decision.

“Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society,” he said.

The case is American Civil Liberties Union et al v. Clapper et al, 2nd US Circuit Court of Appeals, No. 14-42.

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