The Surveillance-Legislative Complex Takes A Fresh Hit

Metadata Program Illegal, Appeals Court Says

Over two years ago, the Privacy and Civil Liberties Oversight Board issued a report on the PATRIOT Act’s Sec. 215 telephone metadata program in which a majority of Board members concluded that

“The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the Board recommends that the government end the program.”

Today, the U.S. Second Circuit Court of Appeals handed down a decision that is virtually identical to the Board’s conclusion. There were many notable statements in the opinion, but I found this passage to be particularly telling:

Thus, the 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.

And this one as well:

Moreover, the distinction is not merely one of quantity — however vast the
quantitative difference — but also of quality. 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 orders at issue here contain no such limits. The 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. (emphasis added)

Earlier today, I called attention to what I consider to be the fundamental insanity of some Congressional efforts to reauthorize a program that doesn’t work and costs taxpayers billions. Now we have both a federal advisory panel and a federal appeals court agreeing the program is illegal. So where do we go from here?

The ACLU’s Anthony Romero had this to say about the implications of today’s 2nd Circuit Ruling:

“The current reform proposals from Congress look anemic in light of the serious issues raised by the Second Circuit,” said Anthony D. Romero, executive director of the ACLU. “Congress needs to up its reform game if it’s going to address the court’s concerns.”

Not all reform proposals are anemic (such as this one). But one thing is for certain: before Congress takes up any surveillance legislation, it should borrow a page from the Church Committee and actually conduct genuine, probing and comprehensive oversight to determine exactly how many of these classified surveillance dragnets actually exist.