NSA phone surveillance illegal appeal court rules

A federal appeals court in New York ruled on Thursday that the once-secret National Security Agency program that collected American citizens’ phone records in bulk is illegal, as fights intensify in Congress whether to keep it or not.

The US Court of Appeals for the Second Circuit in Manhattan said a lower court judge made a mistake in dismissing a lawsuit by the American Civil Liberties Union (ACLU) that challenged the constitutionality of the surveillance on the grounds that it violated people’s privacy.

The 97-page ruling said that a provision of the USA Patriot Act allowing the FBI to gather business records deemed relevant to a counterterrorism investigation cannot be legitimately interpreted to permit the systematic bulk collection of domestic call logs.

At issue was the NSA’s collection of “bulk telephony metadata”, a program whose existence came to light after former NSA contractor-turned-whistleblower Edward Snowden shared the documents with the press.

In December 2013, US District Judge William Pauley in Manhattan dismissed the ACLU lawsuit, saying the NSA program was a counter-punch by the government to help combat terrorism.

It is the first time a higher-level court in the regular judicial system has reviewed the program, which since 2006 had repeatedly been approved in secret by a national security court.

The ruling, in a decision written for a three-judge appeals court panel by Judge Gerard E. Lynch, said: “Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.”

The decision is expected to increase tensions in Congress as the provision of the Patriot Act, which has often been cited to justify the bulk data collection program, will expire in June unless another bill is passed to extend it.

“We do so comfortably [declare the program illegal] in the full understanding that if Congress chooses to authorise such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously,” Lynch wrote.

“Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism,” he said, "but we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate.”

The House should pass the bill next week, the New York Times reported, which would end the government’s bulk collection of phone records. However, a similar bill died in the Senate in November last year after an up-or-down vote on it was blocked with a filibuster.

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