Federal Appeals Court Rules NSA’s Bulk Collection of Americans’ Phone Records Unlawful

Today, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled unanimously in ACLU v. Clapper that the NSA’s bulk collection of Americans’ telephone records violates Section 215 of the Patriot Act.

“A regular federal court has spoken, and has rejected the strained reading of the law pressed by the NSA and adopted by the secret FISA court,” said Elizabeth Goitein, co-director of the Liberty and National Security program at the Brennan Center for Justice. “The judges concluded that when Congress passed the Patriot Act in 2001, it wanted the government to go after terrorists – not to create a vast database of ordinary Americans’ phone records. The decision makes clear that invoking national security does not give the government a blank check to twist Congress’s words beyond all recognition and help itself to Americans’ personal information.”

“By finding illegal a long-hidden program that intruded on practically every American’s privacy, the federal judiciary has fulfilled its role of serving as a check on executive overreach,” said Faiza Patel, co-director of the Liberty and National Security program at the Brennan Center for Justice. “Congress too should fulfill its duty to rein in the executive branch and affirmatively end this program, as well as other illegal aspects of NSA operations.”

The panel rejected the government’s argument that all Americans’ telephone records could be considered “relevant” to an “authorized investigation,” as Section 215 requires. They noted that the government was assembling a comprehensive database to enable searches in future, hypothetical cases, rather than conducting searches tailored to the demands of specific current investigations. They concluded that “such an expansive concept of ‘revelance’ is unprecedented and unwarranted” – and there was no indication that Congress intended such a result when it enacted Section 215. The judges did not address the ACLU’s claims that the program also violates the Fourth Amendment.

The ruling comes one week before the House of Representatives is scheduled to vote on the USA Freedom Act, a bill that would end the NSA’s bulk collection program and which passed out of the House Judiciary Committee last week on a 25–2 vote. The ruling also puts a new spin on a bill introduced by Senate Majority Leader Mitch McConnell (R-Ky.) to reauthorize Section 215 and other expiring Patriot Act provisions. While the intent behind McConnell’s bill may have been to continue the NSA’s bulk collection program, doing so would now require more explicit legislation.

For more information or to speak to an expert, contact Seth Hoy at seth.hoy@nyu.edu or 646–292–8369.