NSA phone surveillance not authorized

(Reuters) – A federal appeals court ruled Thursday the National Security Agency’s collection of millions of Americans’ phone records isn’t authorized by the Patriot Act*, as the Bush and Obama administrations have long maintained. The NSA has used the Patriot Act to justify collecting records of nearly every call made in the U.S. and entering them into a database to search for possible contacts among terrorism suspects. The Court said the collection of the records was not authorized by Congress.

The 2nd U.S. Circuit Court of Appeals in Manhattan said a lower court judge erred in dismissing a lawsuit by the American Civil Liberties Union that challenged the constitutionality of the surveillance on the ground it violated people’s privacy.

At issue was the NSA’s collection of “bulk telephone metadata,” a program whose existence was first disclosed by former NSA contractor Edward Snowden.

In December 2013, U.S. District Judge William Pauley in Manhattan dismissed the ACLU lawsuit, saying the NSA program was a “counter-punch” by the government to aid its efforts to fight terrorism.

Writing for a three-judge appeals court panel, however, Circuit Judge Gerard Lynch said Congress did not authorize the NSA program under a section of the Patriot Act governing how investigators may collect information to fight terrorism.

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” Lynch wrote in a 97-page decision.

“Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism,” he added. “But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate.”

Thursday’s decision did not resolve the issue of whether the NSA program violated the bar against warrantless searches under the Fourth Amendment. The 2nd Circuit returned the case to Pauley for further proceedings. …

[The judges didn’t order the collection to stop, noting that the legislative debate and the looming expiration of Section 215 of the Patriot Act will force action on the issue one way or another.  Section 215 is due to expire next month and lawmakers are haggling about whether to renew it, modify it, or let it lapse.]

The U.S. Department of Justice did not immediately respond to a request for comment. The ACLU did not immediately respond to a similar request.

The case is American Civil Liberties Union et al v. Clapper et al, 2nd U.S. Circuit Court of Appeals, No. 14-42.

Reprinted here for educational purposes only. May not be reproduced on other websites without permission from Thomson Reuters. Visit the website at Reuters .com.

*The USA PATRIOT Act is an Act of Congress that was signed into law by President George W. Bush on October 26, 2001. Its title is a ten-letter backronym (USA PATRIOT) that stands for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.”

On May 26, 2011, President Barack Obama signed the PATRIOT Sunsets Extension Act of 2011, a four-year extension of three key provisions in the USA PATRIOT Act:

  • roving wiretaps
  • searches of business records (the “library records provision”), and
  • conducting surveillance of “lone wolves”—individuals suspected of terrorist-related activities not linked to terrorist groups


1. What argument did the ACLU use to challenge the NSA’s surveillance program of all phone records?

2. On what grounds did U.S. District Judge William Pauley originally dismiss the ACLU lawsuit?

3. For what reasons did the appeals court say the lower court judge erred in dismissing the ACLU’s lawsuit? Be specific – what did the court say?

4. What did the circuit court’s ruling not settle?

5. What happens next?

6. Judge Lynch wrote: “Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism, but we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate.”
a) Do you agree with Judge Lynch’s reasoning? Explain your answer.
b) Ask a parent the same question.


THE U.S. COURT SYSTEM:  There are two separate court systems in America. The federal court system deals with issues of law relating to those powers expressly or implicitly granted to it by the U.S. Constitution, while the state court systems deal with issues of law relating to those matters that the U.S. Constitution did not give to the federal government or explicitly deny to the states.  (from uscourts.gov)

from BensGuide.gpo.gov:

  • Most cases do not start in the Supreme Court. Usually cases are first brought in front of lower (state or federal) courts. Each disputing party is made up of a petitioner and a respondent.
  • Once the lower court makes a decisions, if the losing party does not think that justice was served, s/he may appeal the case, or bring it to a higher court. In the state court system, these higher courts are called appellate courts. In the federal court system, the lower courts are called United States District Courts and the higher courts are called United States Courts of Appeals.
  • If the higher court’s ruling disagrees with the lower court’s ruling, the original decision is overturned. If the higher court’s ruling agrees with the lower court’s decision, then the losing party may ask that the case be taken to the Supreme Court. But … only cases involving federal or Constitutional law are brought to the highest court in the land [the Supreme Court].

(from usgovinfo.about.com/od/uscourtsystem/a/fedcourts.htm)

The Supreme Court
Created in Article III of the Constitution, the Chief Justice and eight associate justices of the Supreme Court hear and decide cases involving important questions about the interpretation and fair application of the Constitution and federal law. Cases typically come to the Supreme Court as appeals to decisions of lower federal and state courts.

The Courts of Appeals
Each of the 12 regional circuits has one U.S. court of Appeals that hears appeals to decisions of the district courts located within its circuit and appeals to decisions of federal regulatory agencies. The Court of Appeals for the Federal Circuit has nationwide jurisdiction and hears specialized cases like patent and international trade cases.
For a Circuit Court of Appeals map, go to uscourts.gov/court_locator.aspx.

The District Courts
Considered the trial courts of the federal judicial system, the 94 district courts, located within the 12 regional circuits, hear practically all cases involving federal civil and criminal laws. Decisions of the district courts are typically appealed to the district’s court of appeals.

(NOTE: There are also Bankruptcy and Special Courts.)


Read about Section 215 of the Patriot Act at wikipedia’s Patriot Act entry.

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