It’s Now Illegal for the NSA to Collect Americans’ Phone Data

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The bulk collection of Americans’ phone data is an issue that has been on a journey for a while now. It began with the released documents from former NSA contractor Edward Snowden and has since spiraled into a national issue of privacy, security, and finding the limitations of America’s surveillance system. Criticism from both the public and from tech and phone companies resulted in a review from President Barack Obama, with reforms to national security limitations.

Ultimately, the issue of the administration’s telephone data collection went to court, and a ruling was passed down from the 2nd Circuit Appellate Court on Thursday, ruling that federal law did not permit the NSA’s program under Section 215 of the Patriot Act. The act, which came into being just after 9/11, when it was signed by President George W. Bush, has been over-applied, according to this latest ruling, and cannot be used to legitimize the program as it has been implemented by security interests.

The ruling disagreed in part with the lower court result, while concurring on certain aspects. It reiterated the point that neither the First nor Fourth Amendments were applicable — technically stating that they dismissed “the complaint without reaching appellants’ constitutional arguments” — but added that Section 215 did not discount judicial review, as the previous ruling had suggested. As a result, bulk collection was ruled unjustifiable with present law.

“This case serves as an example of the increasing complexity of balancing the paramount interest in protecting the security of our nation … with the privacy interests of its citizens in a world where surveillance capabilities are vast and where it is difficult if not impossible to avoid exposing a wealth of information about oneself to those surveillance mechanisms,” stated the decision’s conclusion.

So now the question is: Does this mark the end of the line legally for the bulk collection program? The answer is likely yes, given the U.S. Supreme Court’s decision to remand the case to the lower court and refuse review of the collection program last year in April, and given the fact that constitutional justifications were not needed in resolving the case at the appellate court level. That being said, the issue may still be pushed up to the Supreme Court given this most recent victory, should the higher court chose to hear it.

How far-reaching are the effects of this ruling, now that a decision has been made? Quite possibly, the effects will be significant. Even if the judges chose not to rule on the basis of constitutional issues, the program was found inappropriate based on criteria that could likely be applied elsewhere in the NSA’s surveillance programs, and it equips future challenges with a strong background to build on.

Gen. Keith Alexander, director of the NSA, pointed out that “15 separate judges of the FISA Court have held on 35 occasions that Section 215 authorizes the collection of telephony metadata in bulk in support of counter-terrorism investigations” in testimony before the Senate Judiciary Committee, according to CNN.

The American Civil Liberties Union (ACLU), which filed the case, saw its first victory against the NSA, but it may not be the last. “This ruling focuses on the phone-records program, but it has far broader significance, because the same defective legal theory that underlies this program underlies many of the government’s other mass-surveillance programs,” said ACLU Deputy Legal Director Jameel Jaffer. “The ruling warrants a reconsideration of all of those programs, and it underscores once again the need for truly systemic reform,” he added, according to an ACLU publication.

While the Obama administration proposed and received approval for modification of the bulk metadata program, this decision goes further in preventing abuse and making systematic oversteps more clearly defined, rather than simply the “transition of the Section 215 program” that Obama prescribed to the problem.

Cyber-terrorism as a national threat and the need to remain proactive in handling the threats and powers that come with technological advancement around the world are issues that will continue to come up, and a balance will constantly be poked and prodded between the extremes of privacy protection at the cost of safety, as well as security interests protected at the cost of personal rights.

Somewhere between police state and impotent liability lies the answer, and the hope is that this most recent ruling helped to knock the United States’ security system back into a more measured and appropriate position.

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