The Second Circuit Court of Appeals has ruled unanimously in the case of ACLU et. al, vs. Clapper et. al. that one aspect of the NSA’s bulk collection of metadata (one of the secret programs revealed by Edward Snowden) “exceeds the scope of what Congress has authorized” under section 215 of the USA Patriot Act. (You can read the opinion here.) The issue was whether the NSA’s collection of metadata was legal. A lower court had dismissed the ACLU’s claim but the Appeals Court overturned it and sent it back to the district court to be dealt with accordingly. Because they found it illegal under the law, they did not venture to decide on its constitutionality.
Dan Froomkin of The Intercept discusses the ruling and says that the legal authority for this program was due to expire in a few weeks unless Congress reauthorized it and this may add pressure on them not to do so.
Sens. Ron Wyden, D-Ore., and Martin Heinrich, D-N.M., immediately called on the White House to end the mass surveillance of Americans. “Now that this program is finally being examined in the sunlight, the Executive Branch’s claims about its legality and effectiveness are crumbling,” Wyden said.
The ruling should “give the president the confidence to finally end this overly broad program using his existing authority,” Heinrich said.
“The current reform proposals from Congress look anemic in light of the serious issues raised by the Second Circuit,” said Anthony D. Romero, executive director of the ACLU.
The bulk collection program was arguably the most unprecedented NSA program of all the ones exposed by Snowden, by virtue of its overt focus on monitoring domestic communication.
The opinion describes the extraordinary revealing nature of metadata, and notes that the “structured format of telephone and other technology-related metadata, and the vast new technological capacity for large-scale and automated review and analysis” raises the stakes even higher. “The more metadata the government collects and analyzes, furthermore, the greater the capacity for such metadata to reveal ever more private and previously unascertainable information about individuals,” Lynch wrote, adding: “it is virtually impossible for an ordinary citizen to avoid creating metadata about himself on a regular basis simply by conducting his ordinary affairs.”
The opinion found fault with the government’s strategy of disputing the claims of the ACLU while not being willing to give any details of the program that would show why those claims were wrong.
The Appeals Court did not immediately order the program to be stopped. And since all its ruling says is that the program exceeds the current law’s parameters, the Obama administration and the NSA will do everything they can to keep the program going, from appealing this verdict to the Supreme Court to getting new legislation passed that will enable them to continue doing things just as before, though they will now face greater resistance thanks to the uproar created by Snowden’s revelations.
And of course Obama’s chief advisor on these matters, James “I am a confirmed liar” Clapper, can be depended upon to lie again to Congress that they are not doing anything outside the law.
But we can have to thank Snowden once again for at least enabling the ACLU and other groups to achieve even this possibly temporary victory over government lawlessness.