In a landmark victory for privacy, the Second Circuit Court of Appeals in New York 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:
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:
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:
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 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.
A district court judge had previously dismissed a lawsuit filed by the ACLU in June 2013 that said the program violates people’s privacy, less than a week after documents leaked by former NSA contractor Edward Snowden revealed that the agency has regularly collected records of phone calls pertaining to millions of Americans. The ACLU appealed that ruling in January 2014 and its suit has been remanded back to the district court upon this week’s decision.
U.S. Attorney General Loretta Lynch said on Thursday the Department of Justice was reviewing the court decision that revived ACLU’s lawsuit. “We are reviewing that decision,” Lynch said at a Senate budget hearing. She said the collection was a “vital tool in our national security” and that she was not aware of any privacy violations under the revised program.
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 panel rejected the government’s argument that the ACLU lacked standing because it couldn’t prove that any one person’s records, sitting in a searchable database, had been reviewed by government officials. But whether it’s a machine or a person doing the searching doesn’t matter, Lynch wrote:
[T]he 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. There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.
This could become an important precedent in a legal review of the NSA’s ability to automatically turn voice into text, which I disclosed on Tuesday, based on more documents from the Snowden archive.
During an appearance on MSNBC Thursday afternoon, journalist Glenn Greenwald told Alex Wagner he has spoken to Edward Snowden about the ruling and that the exiled whistleblower is “thrilled” with the decision.
“It took Edward Snowden to come forward and he came forward in large part because he heard Director [James] Clapper, the senior U.S. national security official, tell the Senate and the American people falsely that the government was not doing exactly the program that the court today said was illegal,” Greenwald added, saying it was “very gratifying” to hear the decision today.
Later, when Wagner asked if Greenwald believes this ruling will mean the end of James Clapper’s career, he said we now know the director was “lying and hiding a program that was against the law,” adding, “If that doesn’t get you fired by the Obama Administration, let alone prosecuted, what does? If that’s not a firing offense, then nothing is.”
Finally, when Wagner asked Greenwald if he thinks the ruling could lead to Snowden’s return to the U.S., he replied, “It should.”
“How can anybody say that we would be better off if Edward Snowden had just kept quiet and let us remain ignorant of the spying program that a federal court now said is illegal? It’s classic whistleblowing,” Greenwald said. “I think he deserves our national gratitude, not a life in prison.”
Snowden gave his first public reaction to the ruling at the Nordic Media Festival. He was interviewed on livestream by Tor expert and Forbes contributor Runa Sandvik, who first met Snowden while he was still an NSA contractor when they threw a cryptoparty together in Hawaii.
“This is significant. The importance of it in the U.S. legal community—the policy community–can’t be overstated,” Snowden said, when asked about the ruling. “This decision will not affect only the phone metadata program. It will affect every other mass surveillance program in the U.S. going forward.”
Snowden highlighted the impact that the information he leaked to Glenn Greenwald and other journalists has had on the court’s ability to respond to check government surveillance. “What’s extraordinary about this is the fact that in 2013 before the leaks, the same issues had been tried to be reviewed by the courts,” Snowden said. “Another NGO called Amnesty International brought the same challenge against the same individual. They threw it out of court because Amnesty could not prove it had been spied upon.”
Snowden explained that Greenwald’s story involved a “secret order from a secret court” authorized to monitor phone calls and collect metadata from U.S. citizens. “Metadata [is] analogous to the kind of information a Private Eye would collect if they were following you around. Not necessarily a record of every word you said in conversation with someone else, because you would notice them, but where you had traveled and who you met with,” Snowden said. “What makes this surveillance so dangerous is that it targeted all Americans, regardless of—and before–any suspicion of criminal activity,” he added.
“This being struck down is really a radical sea change in the level of resistance that the United States government has placed thus far. So far, courts have said basically, it’s not our place or our role to tell the executive branch of the government how to do their job,” Snowden said. “It is extraordinarily encouraging to see the court are beginning to change their thinking to say ‘if Congress will not pass reasonable laws, if the executive will not act as a responsible steward of liberty and rights in how they execute the laws, it falls to the courts to say this has gone too far.’”