Thursday, May 7, 2015

NSA bulk metadata collection found unlawful

The 2nd Circuit Court of Appeals just ruled that the NSA bulk collection of phone records or metadata was unlawful. It is not authorized by Section 215 of the Patriot Act. You can read the entire 77 page decision for yourself here if you are really into such things. I'm no legal expert but I am quite happy to see that at least somewhere in some part of our government there are some people who still take seriously the idea that the government doesn't automatically have the right to know EVERYTHING about you. Many people have cursed Edward Snowden and called him out of his name but this metadata tracking warrantless program was one of the things he revealed. This is why I think Snowden is and remains a hero and a whistleblower. Now that the legality of warrantless metadata collection has been found wanting, I hope that both the legislators who will be tinkering with the relevant sections of the Patriot Act and the citizens whom they purportedly represent will take some time to cogitate on what kind of world we want to build. Laws that are written in haste and panic as the Patriot Act was can often have some unforeseen and unpleasant consequences. But if we truly believe that a citizen has, absent individualized suspicion of wrong doing, a right to be left alone then we should applaud this ruling. This decision could start to ever so slightly hinder the government's "eye in the sky" as it were from rifling through our every communication and digital thought.  


I don't want the NSA performing the equivalent of "stop-and-frisk" in cyberspace. On the other hand, if we really want the Bill of Rights to be altered or suspended (or at least weakened for certain people or groups) then let's have that debate openly and honestly. But for now, although the court didn't specifically address all of the Constitutional issues inherent in these questions it's good enough for me that the court found that the NSA exceeded statutory limitations. As we've discussed before I remain amazed and a more than a bit peeved that people have been accepting of governmental misconduct and expansion of powers under the Bush and Obama Administrations that would have caused outrage and possibly impeachment under earlier Administrations. As a nation, we've become too trusting of the executive branch and too eager to give it more power and authority. I understand the desire to be safe and keep others safe. But there is no perfect way to do that. And grabbing everyone's email and phone metadata just because isn't allowed. I don't see this as a right-left issue but an issue of civil liberty and privacy. 
The US court of appeals has ruled that the bulk collection of telephone metadata is unlawful, in a landmark decision that clears the way for a full legal challenge against the National Security Agency.
A panel of three federal judges for the second circuit overturned an earlier rulingthat the controversial surveillance practice first revealed to the US public by NSA whistleblower Edward Snowden in 2013 could not be subject to judicial review.
But the judges also waded into the charged and ongoing debate over the reauthorization of a key Patriot Act provision currently before US legislators. That provision, which the appeals court ruled the NSA program surpassed, will expire on 1 June amid gridlock in Washington on what to do about it.
The judges opted not to end the domestic bulk collection while Congress decides its fate, calling judicial inaction “a lesser intrusion” on privacy than at the time the case was initially argued.
“In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape,” the judges ruled.
But they also sent a tacit warning to Senator Mitch McConnell, the Republican leader who is pushing to re-authorize the provision, known as Section 215, without modification: “There will be time then to address appellants’ constitutional issues.”
“We hold that the text of section 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,” concluded their judgement.
"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."
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