Why the NSA decision matters

Washington CNN  — 

A federal appeals court ruled on Thursday that the telephone metadata collection program, under which the National Security Agency gathers up millions of phone records on an ongoing daily basis, is illegal under the Patriot Act.

The decision by a three-judge panel that the phone record collection program, which was mostly secret for nearly a decade, is not supported by the current version of the law will certainly enter into the brewing political debate over renewing it.

Here are five takeaways from Thursday’s ruling.

The role of the top secret Foreign Intelligence Surveillance Court

The FISC was created by Congress to consider applications for surveillance orders in foreign intelligence investigations. In court papers, government lawyers had defended the program, saying it was under strict scrutiny and had been before 16 different judges of the FISC on 37 separate occasions. Government lawyers argued that the FISC judges “have concluded that it is lawful for the government to obtain telecommunications companies’ business records that consist of telephony metadata reflecting the time, duration, dialing and receiving numbers.”

But the Second Circuit Court of Appeals said the program “for understandable reasons … was shrouded in the secrecy applicable to classified information.” The court ruled there was no opportunity for broad discussion in Congress or among the public of whether the FISC’s interpretation of the section of the Patriot Act was correct. In a footnote, the court added that the “discrepancy” between its conclusion and that of the FISC was in part due to “our having received the benefit of an adversarial presentation of the issues.”

The definition of metadata

The government stressed that metadata does not include the voice content of telephone conversations. But the court said that if a call was made to a “hotline,” it could 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.” Furthermore, the court said it is “virtually impossible” in today’s technology-based world for an ordinary citizen to avoid creating metadata about himself by conducting ordinary affairs.

What Congress intended

The court said there is “no evidence” that Congress intended for the statutes to authorize the “bulk collection of every American’s toll-billing or educational records and to aggregate them into a database.” Judge Gerard E. Lynch, writing for a three-judge panel of the Second Circuit Court of Appeals, said the government’s rationale could be used for many different types of records. “The interpretation that the government asks us to adopt defies any limiting principle,” he wrote.

He noted that under the government’s rationale, it could collect “any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records and electronic communications (including email and social media information) relating to all Americans.”

The implications for privacy in the U.S.

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” Lynch added. The court said that if that were required by national security, at the very least, such a “momentous decision” would be preceded by “substantial debate” and expressed in “unmistakable language.”

A warning about the constitutional issues

Lynch highlights the difficult constitutional issue that might come up in two other appeals courts considering the issue. “Appellants argument invokes one of the most difficult issues in Fourth Amendment jurisprudence: the extent to which modern technology alters our traditional expectations of privacy,” he wrote.