US appeals court rules against NSA phone records collection

Congress didn't give the agency the authority to collect U.S. phone records in bulk, the court says

The U.S. National Security Agency's program to collect domestic telephone records in bulk was not authorized by Congress in the Patriot Act, an appeals court has ruled.

The NSA's phone records program violates U.S. law because it "exceeds the scope of what Congress has authorized," a three-judge panel for the U.S. Court of Appeals for the Second Circuit has ruled.

The appeals court vacated a December 2013 ruling by a district court judge who granted the government a motion to dismiss the case, but upheld the district court decision to deny plaintiffs, including the American Civil Liberties Union, a preliminary injunction to halt the so-called phone metadata collection program.

Section 215 of the Patriot Act, an antiterrorism law passed weeks after the Sept. 11, 2001, attacks on the U.S., allows the NSA to collect business records, phone records and "any tangible thing" that government officials have reasonable grounds to believe are "relevant" to a terrorism investigation.

But the NSA's bulk, ongoing collection of nearly all U.S. phone records depends on an expansive definition of relevance, Judge Gerard Lynch[cq] wrote for the panel.

"The government takes the position that the metadata collected -- a vast amount of which does not contain directly 'relevant' information, as the government concedes -- are nevertheless 'relevant' because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant," Lynch wrote. "We agree with appellants that such an expansive concept of 'relevance' is unprecedented and unwarranted."

Under the phone records program, the NSA collects so-called metadata, information about who telephone users are calling and the frequency and duration of calls, but not the call content.

The appeals court declined to tackle the ACLU's assertion that the phone records program violates the Fourth Amendment of the U.S. Constitution, protecting the country's residents against unreasonable searches and seizures. Instead, the court focused on whether Congress had authorized the program in the Patriot Act.

The constitutional claims lead to some "vexing" questions, the appeals court said. "Because we conclude that the challenged program was not authorized by the statute on which the government bases its claim of legal authority, we need not and do not reach these weighty constitutional issues," the court said. "The seriousness of the constitutional concerns, however, has some bearing on what we hold today, and on the consequences of that holding."

Representatives of the ACLU and the NSA weren't immediately available for comment.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.

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Tags telecommunicationU.S. Court of Appeals for the Second CircuitsecurityCivil lawsuitslegalU.S. National Security AgencyU.S. CongressgovernmentGerard LynchprivacyAmerican Civil Liberties Union

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