Why Today’s Landmark Court Victory Against Mass Surveillance Matters

In a landmark victory for privacy, a federal appeals court ruled unanimously today that the mass phone-records program exposed two years ago by NSA whistleblower Edward Snowden is illegal because it goes far beyond what Congress ever intended to permit when it passed Section 215 of the Patriot Act.

The ruling in ACLU v. Clapper is enormously significant, and not only because the program in question — the first to be revealed by Edward Snowden  is at the heart of a legislative reform effort playing out right now, or because it sparked the most significant debate about government surveillance in decades. The decision could also affect many other laws the government has stretched to the breaking point in order to justify dragnet collection of Americans’ sensitive information.

Under the program, revealed in the Guardian on June 5, 2013, telecommunications companies hand over to the NSA, on a daily basis, records relating to the calls of all of their customers. Those records include information about who called whom, when, and for how long. The ACLU sued the NSA over the program just days after it was revealed, and we took the case to the Second Circuit Court of Appeals after it was dismissed by a district court.

A few points on what makes the decision so important.

1. It recognizes that Section 215 of the Patriot Act does not authorize the government to collect information on such a massive scale. Section 215 allows the government to demand from third parties “any tangible thing” relevant to foreign intelligence or terrorism investigations. “Relevant” is a pretty abstract term, but the government employed a pretty fantastical interpretation to argue that every single call record in America is “relevant” because some of those records might come in handy in a future investigation.

The decision says:

Excerpt from 2nd Circuit ruling on NSA call records program.

2. The decision’s significance extends far beyond the phone records program alone. It implicates other mass spying programs that we have learned about in the past two years and  almost certainly ­— others that the government continues to conceal from the public. For example, we know that the Drug Enforcement Administration, for decades, employed a similar definition of “relevance” to amass logs of every call made from the United States to as many as 116 different countries. The same theory was also used to justify the collection of email metadata. Both those programs have been discontinued, but the legal reasoning hasn’t, and it could very well be the basis for programs the government has never acknowledged to the public, including the CIA’s bulk collection of Americans’ financial records.

The judges wrote:

Excerpt from 2nd Circuit decision on NSA call records program.

3. Metadata is incredibly sensitive and revealing. The government has long argued that the phone records program doesn’t reveal the contents of calls, and as such, it is not an invasion of privacy. But metadata, especially in aggregate, can be just as revealing as content, painting a detailed picture of a person’s life.  The decision reads:

Excerpt from 2nd Circuit Court decision in NSA call records program case.

4. The importance of adversarial review. The court recognized that public, adversarial litigation concerning the lawfulness of this spying program was vitally important to its decision  and it drew a direct contrast to the secret, one-sided proceedings that occur in the Foreign Intelligence Surveillance Court.

The FISC operates in near-total secrecy, in which it almost always hears only from the government. It oversees a wide variety of broad surveillance programs without any public participation or input, approving a body of secret law that has no place in a democracy. This decision affirms the role that federal courts — and the public  have in overseeing practices with such sweeping constitutional implications.

5. The congressional reforms under consideration just don’t cut it. Ahead of Section 215’s sunset on June 1, Sen. Majority Leader Mitch McConnell (R-Ky.) is trying to push through a straight reauthorization of the provision, extending its life by another five years. After today’s decision came down, he took to the floor to defend the program — a position altogether at odds with the appeals court decision, with the conclusions of multiple executive-branch review groups who found the program hasn’t been effective in stopping terrorism, and with the clear consensus that supports far-reaching surveillance reform. Another bill in play (which the ACLU neither supports nor opposes), the USA Freedom Act of 2015, doesn’t go nearly far enough, most notably in ensuring that the government cannot engage in broad collection of innocent Americans’ private information.

We didn’t do this alone. Members of Congress  Rep. James Sensenbrenner (R-Wisc.) and Sen. Ron Wyden (D-Ore.) among them  have played an instrumental role in the fight for surveillance reform. Along with a number of organizations and experts, including the NRA, they filed amicus briefs on the ACLU’s behalf and championed the cause in Congress.

We hope that today’s ruling prompts Congress to consider and enact legislation that’s more robust than what’s currently on the table. Short of that, we continue to believe that Congress should seize the June 1 expiration date as an opportunity to let Section 215 die. 

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Anonymous

During the Cold War, NATO's ACECOMSEC had scattered "listening stations" throughout Western Europe and Turkey. Their sole purpose was to glean as much intelligence from Soviet communications.as possible. Do you honestly think that they were merely collecting meta data? Do you honestly think that the NSA, FBI, DEA, DIA, USMS, ATFE, CIA, et al, merely collects only meta data?

Anonymous

Power corrupts, absolute power corrupts absolutely.

Anonymous

Nothing stops one of the 5 eyes (America, Canada, UK, New Zealand, Australia) from recording mass calls, from outside the USA for NSA, in exchange for America to render the same favor to spy for the UK government on British citizens to bypass privacy laws in these 5 countries.

Anonymous

Grant full amnesty to Edward Snowden, his risks to tell us what's going on behind our back deserves it !

Anonymous

Not only are they collecting data but they are using accusations by police officers that have never been verified using Diffusions through Interpol to justify surveillance that is not legal and then encouraging Infragard and other Citizen Corps to violate laws on the encouragement of authority figures and get away with it due to a lack of surveillance over the millions of dollars given to fight terrorism and to justify future spending. Also see LOVEINT and see how the NSA and some police officers are using the law to promote domestic violence against ex-wives and girlfriends.

Anonymous

Not only are they collecting data but they are using accusations by police officers that have never been verified using Diffusions through Interpol to justify surveillance that is not legal and then encouraging Infragard and other Citizen Corps to violate laws on the encouragement of authority figures and get away with it due to a lack of surveillance over the millions of dollars given to fight terrorism and to justify future spending. Also see LOVEINT and see how the NSA and some police officers are using the law to promote domestic violence against ex-wives and girlfriends.

Anonymous

The court is not going to enforce it's ruling (which is stated) and law enforcement and intelligent agencies know this. Politicians are not going to stop bulk data collection (they may limit access to it) so what was the point of the law suit? Winning a lawsuit in the U.S. is meaningless when little to nothing changes. The ACLU is becoming less and less effective as the politicians, law enforcement, and government agencies ignore the court[s] rulings.

Thomas Bean

You said it. Courts have no interest or ability to enforce their rulings: it's hoped that the police state actors know and follow such rulings. For the longest time, you needed a warrant to breakin, search, seize: in my case (not appreciated by several ACLU offices) from 1986-2016, I've never been given notice of any illegal searches, or seizures. The cops have figured out how to abuse state secrets to create a protected secret surveillance run by contractors and civilians. The info is illegally disseminated, and sting operations are run by cops who never acknowledge "who, what, when, where, how" they got the tainted info. Somehow, charges are plea bargained based on compartmentalized Brady Violations. The entire surveillance file (including secret contract surveillance files) are supposed to be discoverable, but...that requires notice. There is no notice from cops or prosecutors: they've been protecting community policing (gang stalking) since 1986. Those are issues I wanted ACLU to look at: ACLU offices from several states, wouldn't and couldn't communicate anything other than the knee jerk "sorry, not interested"? There is no more incompetent group of well meaning-do nothing lawyers, then the ACLU in every state and at HQ. They miss the biggest cases: secret assassination of my known associates after I signed and sent the DOJ OIG complaint that Thomas Tamm heard about...leading to the NSA TSP admission-scandal. ACLU Nat Sec, and state offices...would not conduct an interview for 10 minutes of their time??????????????!!!!!!!!!!!!!!!!!

B.J. Rassam

It's interesting to listen to and read the comments on both sides. We all want security and protection of the populace, but at what cost? From a laymen's perspective, you hope that those attorneys arguing these matters (and their backers) are coming from a good and genuine place, and not using these seemingly reasonable arguments to cover for their more nefarious intent.

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