U.S. Appellate Court rules against bulk phone surveillance

Second Circuit


The 2nd Circuit U.S. Court of Appeals has ruled [PDF] that bulk collection of U.S. telephone metadata is unlawful.

The ruling is the most significant judicial statement to date on the overbreadth of current U.S. surveillance practices. It rebuts the prior finding by the Foreign Intelligence Surveillance Court that “because it is necessary to obtain the bulk collection of a telephone company’s metadata…the production of the information sought meets the standard for relevance under Section 215 [of the Patriot Act].”

The 2nd Circuit found, to the contrary, that:

“[The] text of [Section 215 of the Patriot Act] cannot bear the weight the government asks us to assign to it, and…it does not authorize the telephone metadata program.”

The opinion does not go further to address the constitutionality of the NSA’s indiscriminate surveillance program.

Bulk phone metadata collection is unlawful

The Court determined that the bulk telephone metadata program goes beyond what the law permits. Section 215 of the Patriot Act allows the collection of “tangible things” that are “relevant to an authorized investigation.” In operating bulk metadata programs, the government has argued that anything could become “relevant” to terrorism investigations. Not surprisingly, the Court rejected that argument. The Court said:

“The government’s approach essentially reads the ‘authorized investigation’ language out of the statute. Indeed, the government’s information-gathering under the telephone metadata program is inconsistent with the very concept of an ‘investigation.’ To ‘investigate’ something, according to the Oxford English Dictionary, is ‘[t]o search or inquire into; to examine (a matter) systematically or in detail; to make an inquiry or examination into.’”

The opinion lays groundwork for further challenges to surveillance

 The Court also laid the groundwork for challenging other surveillance programs. The Court noted:

“[The] government admits that, when it queries its database, its computers search all of the material stored in the database in order to identify records that match the search term. In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent.”

Extending the Court’s logic to other surveillance programs where the government conducts automated queries over broad swaths of data as it travels along fiber optic cables or is stored on companies’ servers may allow individuals to assert standing to challenge these programs.

The Constitutional questions are not settled

While the Court held that the program is unlawful, it did not decide whether it violates people’s right to privacy under the U.S. Constitution. There will be be further opportunities for the 2nd Circuit, and subsequently the Supreme Court, to answer the question of whether surveillance programs violate constitutionally protected rights. Today’s ruling demonstrates that the current surveillance programs are overbroad, but it does not consider the proper scope of surveillance or change government practices to increase transparency and accountability.

The Court’s decision should encourage members of Congress to take bolder action as they consider legislation on these issues. We believe that the USA FREEDOM Act remains a viable vehicle for surveillance reform, but that in the wake of this ruling, it is incumbent upon the Senate to further strengthen the bill’s protections. Examples of amendments that we would like to see are detailed here.