NSA Phone Records Program Illegal

NSA mass phone surveillance revealed by Edward Snowden ruled illegal reported in the UK Guardian today.

A brief disclaimer before I begin. As a retired attorney I am not permitted to give legal advice and my opinions regarding legal matters have no more weight than those of any other lay person. Fortunately the issues in the case at hand aren’t related to anything I encountered during my career (which ended two decades ago), so there’s little danger of my invoking any special legal knowledge or experience here.

This is an important case. The Guardian’s coverage is very good, as expected given their role in revealing the existence of this particular program. It is likely the US Government will appeal to the US Supreme Court.

In their decision, the 2nd US Circuit Court of Appeals reverses a ruling by a US District Court that denied an injunction to stop the mass surveillance of Americans by the National Security Agency (NSA), an arm of the US Defense Department, through the bulk collection of telephone call “metadata” (cops and lawyers out there will recognize this as the “LUD” or Local Usage Detail listings often used as evidence in organized crime and domestic violence cases). The US Government opposed the injunction on the basis that it the program in question was authorized by the USA PATRIOT ACT. The Court of Appeals found that the program was not authorized by the PATRIOT ACT and remanded the case back to the lower court for further proceedings.

The phone records being collected every day by the NSA were not restricted to overseas communications of specific individuals, but included all calls made within the United States — both by individuals and businesses.

For any other lawyers out there with an interest in mass surveillance against citizens and businesses, the Court of Appeals decision can be found here: ACLU vs Clapper. Archive video of oral argument on CSPAN.

The court’s decision follows long-established practice in not reaching the constitutional issue once they determined that the statute itself did not authorize the activity in question. Its release in the midst of debate over the USA FREEDOM ACT, which if enacted would replace the PATRIOT ACT, is timely and will undoubtedly not go unnoticed.

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About phil

My name is Phil Lembo. In my day job I’m an enterprise IT architect for a leading distribution and services company. The rest of my time I try to maintain a semi-normal family life in the suburbs of Raleigh, NC. E-mail me at philipATlembobrothersDOTcom. The opinions expressed here are entirely my own and not those of my employers, past, present or future (except where I quote others, who will need to accept responsibility for their own rants).