On May 7, 2015, the United States Court of Appeals for the Second Circuit found that the controversial surveillance program according to which the National Security Agency (NSA) has been collecting Americans’ phone records is not authorized under the USA Patriot Act. ACLU v. Clapper, 2015 U.S. App. LEXIS 7531.
In particular, the court held that the bulk telephone metadata program done by the NSA is not authorized by §215 PATRIOT Act. The collected metadata “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. Metadata can also reveal the user or device making or receiving a call through unique “identity numbers” associated with the equipment.
The district court had “held that § 215 of the PATRIOT Act impliedly precludes judicial review; that plaintiffs‐ appellants’ statutory claims regarding the scope of § 215 would in any event fail on the merits; and that § 215 does not violate the Fourth or First Amendments to the United States Constitution.” The Second Circuit disagreed and held “that § 215 and the statutory scheme to which it relates do not preclude judicial review, and that the bulk telephone metadata program is not authorized by § 215.”
The Court of Appeals recognized the “complexity of balancing the paramount interest in protecting the security of our nation – a job in which, as the President has stated, actions are second‐guessed, success is unreported, and failure can be catastrophic (…) with the privacy interests of its citizens in a world where surveillance capabilities are vast and where it is difficult if not impossible to avoid exposing a wealth of information about oneself to those surveillance mechanisms.” (internal quotation marks omitted)
Notwithstanding the above, the court overturned the lower court‘s decision and determined that the bulk telephone metadata collection program under which the National Security Agency collects “on an ongoing daily basis” the metadata associated with telephone calls made by and to Americans, and aggregates those metadata into a repository or data bank that can later be queried, exceeds the scope of what Congress has authorized, and violates § 215 of the USA Patriot Act.” “Accordingly” the court “VACATE[D] the district court’s judgment dismissing the complaint and REMAND[ED] the case to the district court for further proceedings consistent with this opinion.”
Because the Second Circuit reached the conclusion that NSA’s activity was illegitimate based on statute interpretation, the court does not need to reach the question whether § 215 violates the Fourth or First Amendment.
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