N.S.A.: No Such Authority


Warrantless seizure of all American's telephone record? No Such Authority

Warrantless seizure of all American’s telephone record? No Such Authority

The Second Circuit Court of Appeals ruled that Section 215 of the Patriot Act does not authorize the bulk collection of American’s telephone records. While the decision is important, it is not the final word on the issue.

Remember, we wouldn’t know about the NSA’s snooping in our phone records if it weren’t for Edward Snowden. While President Geroge W. Bush created the program by fiat in October 2001, it did not come to public attention until June 2013 Snowden leaked it. So let’s have a quiet nod first to Snowden, who remains in exile from our vindictive federal government.

Section 215 was an after-the-fact excuse for the NSA’s seizure of our personal data. It’s pretty clear that the NSA was seizing the data prior to enactment of the Patriot Act. But the Bush Administration and then the Obama Administration used Section 25 to justify the warrantless seizure. After Snowden made the seizures public, there were several lawsuits challenging both the legal authority purportedly granted under Section 215 and the constitutionality of that authority. Yesterday’s decision is the first time a court of appeals has ruled on any of those lawsuits.

There were four major issues raised: (1) did the Patriot Act preclude judicial review, (2) was the ACLU the proper party to raise these questions, (3) does Section 215 authorize the seizure of telephone records, and (4) was the seizure unconstitutional?

In a 97-page decision, the Second Circuit ruled in favor of the ACLU on the first three of those four issues. Judicial review of Patriot Act provisions is lawful, the ACLU as a proper party – “had standing” in legal terms – and the Section 215 did not authorize the mass seizure of American’s telephone records. Since appellate courts avoid constitutional decisions where possible, the court did not reach the fourth question of constitutionality.

The Second Circuit noted that the Patriot Act was due to expire on June 1, 2015 anyway, and afforded Congress an opportunity to revise Section 215. That doesn’t mean that the Second Circuit thinks even a revised Section 215 would be constitutional; that issue remains open, undecided because it was unnecessary for the current decision. So the Second Circuit sent the case back to the U.S. District Court.

Of course, Congress remains about as effectual as a runny egg. It’s not clear it’s even capable of renewing the Patriot Act, let alone making a controversial amendment to an already controversial statute.

Who knows? The United States may petition for certiorari to the U.S. Supreme Court. Congress may fuddle out an amended Section 215, sending us through the whole appeal cycle a second time. Or maybe, just maybe, Congress will remember there’s a Fourth Amendment to the Constitution, that prohibits warrantless searches.

Right. And maybe the horse will learn to sing.

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