Computers, Privacy & the Constitution
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Second Circuit Holds that Patriot Act Does Not Authorize NSA Spying Program

-- By JoshuaDell - 13 May 2015

(I) ACLU v. Clapper (2d Cir. 2015)

On May 7 2015, the United States Court of Appeals for the Second Circuit held that a National Security Agency (“NSA”) program that systematically collects in bulk the phone records of Americans is illegal. The court specifically held that the NSA’s bulk telephone metadata collection program was not authorized by the Patriot Act 215; “We [] hold that 215 [of the Patriot Act] 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 (ACLU v. Clapper, No. 14-42, (2d Cir. 2015), “ACLU”). The “bulk telephone metadata collection program” is a scheme under which the NSA collects on an ongoing daily basis the metadata associated with telephone calls made by and to Americans, and aggregates that metadata into a repository or data bank that can later be queried (ACLU, 4). The program was enacted by the Bush administration following the 9/11 terror attacks under the supposed authority of the Patriot Act. The instant case was argued before the Second Circuit in September 2014. The government has not stated whether it will appeal.

In holding that the Patriot Act did not authorize the NSA to conduct this type of surveillance, the Second Circuit overturned a decision by the District Court. In December 2013, the District Court for the Southern District of New York held that the program was properly authorized by the Patriot Act, and granted a motion to dismiss the ACLU suit. In ACLU v. Clapper, however, the Second Circuit reversed, “Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint” (ACLU, 5). Judge Gerard Lynch authored the opinion for the three-judge Second Circuit panel. The panel chose not to address the question of whether the surveillance program was unconstitutional under the Fourth Amendment.

(II) Analysis and Reaction to the Second Circuit Decision

(IIa) Analysis of Political Reaction

Following the Second Circuit decision, Congress will have to decide how to react and whether to replace or end the NSA surveillance for which it provides funding and political legitimacy. Significantly, portions of Patriot Act Section 215 are set to expire on June 1, 2015. So far the Obama administration has been unable to communicate a clear reaction to the Second Circuit decision. On the one hand, following the decision a White House spokesman stated that President Obama believes Congress should not reauthorize the program when it expires in June. On the other hand, the spokesman has also stated that the President would be open to supporting a scaled-back program that continued the current regime’s “essential capabilities” (REUTERS, “NSA Phone Spying Program Ruled Illegal,” May 7, 2015, p. 3, “REUTERS”). The new U.S. Attorney General, Loretta Lynch, said following the decision that she believed NSA surveillance in general to be a “vital tool in our national security arsenal” (REUTERS, p. 2). Meanwhile, the Republican Senate Majority Mitch McConnell? and the Senate Intelligence Committee Chair Richard Burr have stated that they support extending the NSA program and other parts of the Patriot Act through 2020; however, Democratic Senate Minority Leader Harry Reid opposes the program, calling it “irresponsible[] to extend these illegal spying powers when we could pass bipartisan reform into law instead (REUTERS, p. 3).

(IIb) Analysis of Judicial Impact

Other U.S. Circuit Courts are likely to rule on this same legal issue in the months ahead. Although the Second Circuit found the NSA program to be illegal because it was unauthorized, other Circuits may rule differently and find the program to be authorized. For example, at present the D.C. Circuit and Ninth Circuit are also considering the legality of the NSA program and are likely to rule in 2015. If Congress chooses not to end the program legislatively and the Circuits disagree, then the U.S. Supreme Court may eventually feel an inclination to address the issue.

(IIc) Everyday Americans Unaware

There can be no question that the ACLU and opponents of NSA surveillance deserve praise for advocating for the privacy of everyday Americans. Everyday Americans, however, would do better do adopt a sense of personal responsibility about making informed decisions regarding their privacy and security. 245 million people in the U.S. use a wearable fitness tracker of some type, according to the Pew Research Center, even as these devices track an individual’s location and are a portal through which hackers can access an individual’s hard drive (CIO.COM, “Fitness Trackers are Changing Online Privacy And It’s Time to Pay Attention,” Aug. 14, 2014, p.2). Perhaps some of the millions of Americans who wear health trackers make an active and informed decision to choose the benefits that they believe the trackers bestow on their wellbeing over their privacy. But my guess is that most are unaware. To be sure, one can oppose NSA surveillance and consent to a wearable fitness tracker. But an important question is whether Americans are aware that their wearable fitness and other devices are tracking more than just their average mile time. For the efforts of opponents of NSA surveillance to truly resonate, everyday Americans will need to take a more active role in making themselves informed about the privacy and security implications of their personal lifestyle choices, including not just their smartphone, but also wearable technology.


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