In June of 2013, I posted about the revelations of Edward Snowden. At that time we didn’t know it was Snowden who leaked NSA’s secrets to Glenn Greenwald and Laura Poitras. Nor did we realize the extent of what Snowden took from the NSA. We still don’t know what else might be revealed, but it is hard to argue that Snowden hasn’t provided a major impetus to the fight to restore our Fourth Amendment rights. A major battle is now coming to a head with today’s appeals court ruling that NSA’s phone spying is illegal and the sunsetting of Section 215 of the Patriot Act governing NSA’s bulk domestic surveillance program on 1 June.
(Reuters) - A U.S. spying program that collects data about millions of Americans' phone calls is illegal, a federal appeals court ruled on Thursday, adding pressure on lawmakers to decide quickly whether to end or replace the program, which was intended to help fight terrorism.
While stopping short of declaring the program unconstitutional, the 2nd U.S. Circuit Court of Appeals in Manhattan said Congress did not authorize the National Security Agency to collect Americans' phone records in bulk. The existence of the NSA's collection of "bulk telephony metadata" was first disclosed in 2013 by former NSA contractor Edward Snowden.
Writing for a three-judge panel, Circuit Judge Gerard Lynch said Section 215 of the Patriot Act governing the collection of records to fight terrorism did not authorize what he called the NSA's collection of a "staggering" amount of information, 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." (Reuters)
NEW YORK – In a landmark decision, a federal appeals court unanimously ruled today that the NSA’s phone-records surveillance program is unlawful. The Second Circuit Court of Appeals held that the statute the government is relying on to justify the bulk collection of phone records – Section 215 of the Patriot Act – does not permit the gathering of Americans’ sensitive information on such a massive scale. The case was filed by the American Civil Liberties Union and the New York Civil Liberties Union in June 2013, immediately after NSA whistleblower Edward Snowden disclosed the existence of the program.
“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. “Congress needs to up its reform game if it’s going to address the court’s concerns.” The government had argued in the case, ACLU v. Clapper, that the court should not consider the lawfulness of the program at all, arguing that the ACLU lacked “standing” to challenge the surveillance and that Congress had “precluded” judicial review except by the Foreign Intelligence Surveillance Court, which meets in secret, rarely publishes its decisions, and generally hears argument only from the government. Today’s decision rejects those arguments.
The ruling aligns with the lower court decision in a similar lawsuit in Washington, Klayman v. Obama, in which U.S. District Judge Richard J. Leon found the NSA program to be likely unconstitutional. The government’s appeal of that case was argued on November 4. Another challenge to the phone-records program was argued before the Ninth Circuit Court of Appeals on December 4.
“This decision is a resounding victory for the rule of law,” said ACLU Staff Attorney Alex Abdo, who argued the case before the three-judge panel in September. “For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority. The court rightly rejected the government’s theory that it may stockpile information on all of us in case that information proves useful in the future. Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society.” (ACLU)
I think it will be difficult to prevent the demise of Section 215 of the Patriot Act on June 1st. The USA Freedom Act has bipartisan support and will ostensibly rein in NSA’s bulk surveillance programs, but many say it is weak and does not go far enough. This court ruling may help Justin Amash and others preserve the more stringent provisions of the USA Freedom Act, however flawed it may be, or at least prevent amendments to further water it down. It also pretty much rules out a simple reauthorization of Section 215 that Mitch McConnell is pushing. In fact, I think there is a good chance that Section 215 may just wither away on June 1st. However, those who worship at the altar of surveillance will not give up their power willingly and they will play dirty.
These judicial and legal maneuvers are just one front in the battle to preserve the Fourth Amendment. Another equally, if not more important, is the technical front. Apple and Android are encrypting their customers’ data at their request, much to the chagrin of the FBI and NSA. Bruce Schneier makes an excellent point about security in his recent column about the FBI’s cellular network collection technology. “We have one infrastructure. We can't choose a world where the US gets to spy and the Chinese don't. We get to choose a world where everyone can spy, or a world where no one can spy. We can be secure from everyone, or vulnerable to anyone.” Developers like Jacob Appelbaum and the TOR team are also fighting the good fight for public privacy. TOR has been the bane of the FBI and the NSA for quite some time. Even Kim Dotcom, the MPAA’s public enemy number one and modern day P.T. Barnum, is working on storage and communication technologies to protect our privacy. He may be a scoundrel and a rascal, but I like that big bastard. And we may need some scoundrels and rascals to take on the much worse scoundrels and bastards of the surveillance state.