NSA defends dragnet collection of Americans’ phone records in appeals court

A federal appeals panel heard arguments in New York City on Tuesday from attorneys representing the American Civil Liberties Union and the United States government as the court considers the future of a controversial phone surveillance program.

The three democratically-appointed judges serving the Second Circuit Court of Appeals spent two hours asking questions of the ACLU and Justice Department lawyers during the hearing, but reserved making a decision just yet concerning the matter at hand: the US intelligence community’s reliance on Section 215 of the Patriot Act to receive in bulk the metadata, or raw call records, pertaining to the daily phone habits of millions of Americans.

Last June’s disclosure of classified documents detailing how the US National Security Agency compels telecommunication companies for these records spawned a slew of lawsuits, including one brought by the ACLU only days after journalists began to report on the leaks attributed to former NSA contractor Edward Snowden. And although a federal court judge serving the District of Washington, DC agreed with the plaintiffs in one case that the government’s use of Sec. 215 was likely unconstitutional and “almost Orwellian,” Judge William Pauley ruled for the Southern District of New York last December in the government’s favor and insisted “There is no evidence that the government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks,” and that the NSA’s efforts are necessary to combat the “bold jujitsu” of international terrorism.

Attorneys for the ACLU soon after appealed Judge Pauley’s decision, which in turn took lawyers to the Second Circuit this week to answer questions before the appellate panel now tasked with deciding if the lower court’s ruling is worthy of standing.

"The purpose of this work is to detect and disrupt future plots," Assistant Attorney General Stuart Delery told the court on Tuesday on behalf of the government, adding later that Sec. 215 provides authorities with the ability to request "any tangible thing" relevant to a terrorism investigation.

Judge Robert Sack questioned whether that qualified the government to go after almost anything, however, remarking at one point before the court: "If everything is 'relevant,' 'relevance' drops out. It just doesn't exist."

“It’s hard to imagine that [Section 215’s] rather innocuous language” means the government can collect phone records indiscriminately and in bulk, Judge Gerard E. Lynch told Delery during the hearing. “You’re really saying, ‘They’re not relevant to an investigation right now; we just want to have them in case they become relevant’ ” in the future, he said.

On the ACLU’s part, attorneys for the organization argued in a brief submitted before this week’s hearing that the data collection program provides the government with an unprecedented ability to legally learn and log intimate facts about everyone with a telephone, regardless of whether they are ever a suspect of terrorism.

“Each time a resident of the United States makes a phone call, the NSA records whom she calls, when the call was placed, and how long the conversation lasted,” the ACLU wrote. “The NSA keeps track of when she called the doctor, and which doctor she called; which family members she called, and which she did not; which pastor she called, and for how long she spoke to him. It keeps track of whether, how often, and precisely when she called the abortion clinic, the support group for alcoholics, the psychiatrist, the ex-girlfriend, the criminal-defense lawyer, the suicide hotline, and the child-services agency.”

On the morning of Tuesday’s hearing, attorney Alex Abdo wrote on the ACLU’s website that the group was “optimistic that the court will agree with us that the bulk collection of sensitive information on millions of innocent Americans is unlawful.” After arguments concluded, USA Today reported that the appeals panel “expressed skepticism” over the surveillance program during discussion, and an Associated Pressdispatch acknowledged that the government’s lawyers faced “tough questions” from a panel that at times seemed concern that the DOJ’s stance allows authorities to study “every American’s everything.”

Indeed, Judge Lynch asked the government at one point during the hearing to explain why it resorts on using Sec. 215 to collect phone data en masse, but not other “tangible things.”

“You can collect everything there is to know about everybody and have it all in one big government cloud,” Lynch said. “. . . I just don’t understand the argument as to what’s so special about telephone records that makes them so valuable, so uniquely interactive, that the same arguments you’re making don’t apply to every record in the hands of a third-party business entity of every American’s everything.”

“The legal theories that [the government] advances are a road map to a world in which the government routinely collects vast quantities of information on Americans who have done absolutely nothing wrong,” Abdo told the court. “I don’t think that’s the world that Congress envisioned when it enacted Section 215, and it’s certainly not the world that the framers envisioned when they crafted the Fourth Amendment.”

The Court of Appeals for the DC Circuit is currently slated to meet on November 4 to weigh the decision made last year by Judge Richard Leon, the justice who last year ruled in the favor of a conservative legal activist who similarly filed suit against the NSA’s telephony metadata collection program. Meanwhile, legislation currently being considered by Congress could drastically reform the government’s Sec. 215 abilities if approved by lawmakers in Washington.