A unanimous panel of the United States Court of Appeals for the Second Circuit held on Thursday that the National Security Agency’s sweeping database of U.S. phone calls is not authorized by federal law.
The database, which the public learned about after Edward Snowden leaked a court order concerning the NSA’s surveillance activities in 2013, is truly breathtaking in its scope. Snowden leaked an order directing to telephone company Verizon to produce “all call detail records or ‘telephony metadata’’ relating to Verizon communications within the United States or between the United States and abroad,” and the federal government did not “seriously dispute” a claim that “all significant service providers in the United States are subject to similar orders.” Though the database does not include the actual content of people’s calls, the metadata held by the NSA does include “details about telephone calls, including, for example, the length of a call, the phone number from which the call was made, and the phone number called.”
The government claims that this law is authorized by a provision that was amended by the USA PATRIOT Act and subsequent laws which permits certain government officials to “make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Yet the law also requires the government to provide a special surveillance court with “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted [under guidelines approved by the Attorney General].’”
The Second Circuit’s opinion hones in on the word “relevant” to explain why this law does not authorize the NSA’s enormous database. In this case, the court notes, “the parties have not undertaken to debate whether the records required by the orders in question are relevant to any particular inquiry.” Rather, [t]he records demanded are all‐encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry.” This, the court explains, is not allowed:
[T]he 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 unwarranted.
Later in its opinion, the court explains just how unusual it is for the government to seek such a sweeping authorization to gather data from a court. “Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred,” the Second Circuit explains. Yet, “[t]he orders at issue here contain no such limits.” Instead,
[t]he metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. 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. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.
Earlier in the opinion, the court lays out some of the information that government officials could uncover with the information in the NSA’s database. “[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.” Additionally, “[m]etadata can reveal civil, political, or religious affiliations; they can also reveal an individual’s social status, or whether and when he or she is involved in intimate relationships.”
Though the opinion has clear implications for Americans’ right to privacy, the court avoids the question of whether a program like the NSA’s database, were it authorized by federal law, would actually be constitutional. In December of 2013, a federal district judge struck down the program on constitutional grounds, holding that “the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies” have become “so thoroughly unlike those considered by the Supreme Court thirty-four years ago” when the justices gave police broad authority to obtain telephone companies’ metadata that those precedents can not be applied to the NSA’s program.
Though the Second Circuit, for its part, held that the NSA’s database is illegal, it declined to halt the program immediately, noting that the federal law which allegedly authorizes the program is about to expire. “Allowing the program to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on appellants’ privacy than they faced at the time this litigation began,” the court explained. Thus, “[i]n light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.”