Yesterday, a three judge panel of the US Second Circuit Court of Appeals ruled that the NSA’s mass collection of all Americans’ phone metadata is not authorized by Section 215 of the Patriot Act, and is therefore illegal. The ruling has limited implications, because Section 215 is scheduled to expire at the end of this month, and it is not clear if Congress will extend, modify, or allow it expire. However, Judge Gerard Lynch’s opinion had some harsh things to say about bulk collection of metadata.
The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here. The sheer volume of information sought is staggering….
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. We agree with appellants that such an expansive concept of “relevance” is unprecedented and warranted….
[G}overnment repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans….
The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created…
It permits demands for documents “relevant to an authorized investigation.” The government has not attempted to identify to what particular “authorized investigation” the bulk metadata of virtually all Americans’ phone calls are relevant….
A call to a single-purpose telephone number such as a “hotline” might reveal that an individual is: a victim of domestic violence or rape; a veteran; suffering from an addiction of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual’s social status, or whether and when she is involved in intimate relationships.
Congress is currently tussling over what to do about Section 215. They are considering another bill, the USA Freedom Act,which would renew some expiring sections of the Patriot Act, but end the NSA’s bulk collection of phone records. Stay tuned.
STRAIGHT LINE LOGIC 