A federal appeals court has succeeded where other bodies of government have failed, and landed a blow for privacy advocates everywhere by citing the NSA’s bulk data collection as being potentially unconstitutional. In doing so, the 2nd Circuit Court of Appeals said that a lower court judge erred in dismissing a law suit by the American Civil Liberties Union (ACLU) targeting the practice. The Appeals Court decision is timely, as Congress and the administration have locked horns over the thorny issue of unfettered agency surveillance.
At the same time, the court, in rendering its opinion, reaffirmed the necessity of a publicly elected branch of government to make the rules governing such actions. At the heart of the issue is the NSA’s collection of bulk telephone metadata, a program first brought to light nearly two years ago by Edward Snowden. It contends that the gathering of such data was not authorized by Congress.
The Appeals Court thus revived the ACLU challenge of a December 2013 decision by U.S. District Judge William Pauley, an Obama appointed jurist, who dismissed the ACLU lawsuit, intimating that it was a necessary government “counter-punch” to fight terrorism. In making its judgement, the Appeals Court Judge, Gerald Lynch, said in the 97 page opinion,
“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.”
The ruling is also important because it seems to have succeeded in addressing a problem that the various other branches of government have botched. Even as I write, Congress is wrangling over legislation to extend or water down the odious Patriot Act, while the administration, looking more and more like a lame-duck enterprise, wrings its hands and commissions polls to determine on which side of the issue it should be.
Not at issue in this case are Fourth Amendment violations regarding warrantless searches of data, but merely returning the case to Pauley for further adjudication, while upholding his denial of an injunction to stop the practices. Instead, Appeals Court judge Lynch pronounced the main reason for returning the case was the absence of substantial debate on its merits, even in the face of terrorist threats.
At this point, the pro-privacy community celebrates even the smallest of victories, as neither the administration nor Congress seems to have an appetite for stemming the abusive intrusions of government agencies on individual’s privacy. The clock is ticking on the impending sunset of Section 215 of the Patriot Act, with each side scampering for votes and to occupy the moral high ground. It is certain to be the fodder for the grist mills in the coming days. Stay tuned to this space.