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US Government’s Legal Theory for Dragnet Surveillance Programs Invalidated by Federal Appeals Court Decision

ACLU graphic created to celebrate the Second Circuit appeals court’s decision

When a federal appeals court ruled that the United States government’s telephone metadata program was illegal, it did not only call attention to how Congress had not authorized the massive surveillance program exposed by NSA whistleblower Edward Snowden. It also acknowledged that the legal theory the government relied upon to defend the program is significantly flawed. In doing so, it invalidated the government’s rationale for maintaining any and all of its dragnet surveillance programs in the “war on terrorism.”

The American Civil Liberties Union sued the government after it was revealed that the government operated a surveillance program under the PATRIOT Act, where the phone records of millions of Americans are collected and stored by the NSA. It argued that the “blanket seizure of the ACLU’s phone records compromises the organization’s ability to carry out its work and to engage in legitimate communications with clients, journalists, advocacy partners, whistleblowers and others.”

In December 2013, a federal judge defended the secrecy shrouding the surveillance program and ruled it was “lawful.” The Second Circuit Court of Appeals vacated the Southern District Court of New York’s decision.

The appeals court recognized that the government asked the court to adopt a rationale for its surveillance program that had no “limiting” principles. If all telephone records of Americans could be said to be “relevant” to any and all counter-terrorism investigations, then what would stop the government collecting and storing other sets of records because they claimed they were “relevant” too?

“If the government is correct, it could use § 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e?mail and social media information) relating to all Americans,” the court declared [PDF]. “Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.”

The appeals court accepted the possibility that Congress might want such a “contraction” to protect “national security” from “domestic and international terrorism,” however, the court would expect such a “momentous decision” would be “preceded by substantial debate” before being allowed.

In other words, because of the substantial issues of privacy, including constitutional issues, the government should not be permitted to operate a dragnet surveillance program in total secrecy without the Congress having some kind of public debate, which in this case never happened prior to the government collecting and storing millions of Americans’ phone records.

Jameel Jaffer, the ACLU’s legal director and a lead counsel in this lawsuit, reacted, “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.”

“The ruling warrants a reconsideration of all of those programs, and it underscores once again the need for truly systemic reform,” Jaffer added.

The appeals court focused on the government’s extraordinarily broad definition of “relevance,” which virtually redefines the word. It noted that the government’s position is that metadata collected is “relevant” because it “may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant.” It called this an “unprecedented and unwarranted” concept of the word “relevance.”

Even more significantly, the appeals court demolished the government’s argument that this “relevance” standard is nearly identical to the standard used for “grand jury and administrative subpoenas.”

“Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits,” the appeals court determined.

…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…

While there may have been instances where grand jury or administrative subpoenas allowed for dragnets to be setup, those dragnets depended on facts in a particular investigation. They also had “finite time limitations.” In this case, there is “no foreseeable end point, no requirement of relevance to any particular set of facts and no limitations as to subject matter or individuals covered.”

[Note: The appeals court decision does not address how a program similar to the NSA’s bulk data collection program has been utilized by the DEA. The government’s rationale raises the question: to what extent has the government’s approach to terrorism become a model for other surveillance programs that have potentially grown into dragnet-style programs to fight money laundering, drug trafficking, human trafficking, arms trafficking, etc.]

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The Second Circuit Court of Appeals specifically argued that Section 215 of the PATRIOT Act does not allow the government to collect “any information relevant to fighting the war on terror or anything relevant to whatever the government might want to know.” What it does permit is demands for documents that are “relevant to an authorized investigation.”

…The government has not attempted to identify to what particular “authorized investigation” the bulk metadata of virtually all Americans’ phone calls are relevant.  Throughout its briefing, the government refers to the records collected under the telephone metadata program as relevant to “counterterrorism investigations,” without identifying any specific investigations to which such bulk collection is relevant…

This practice was clearly irritating to the appeals court, as it noted that the Privacy and Civil Liberties Oversight Board had criticized the fact that the government simply lists multiple terrorist organizations on applications for bulk collection and then declares that all records sought are “relevant to the investigations of all of those groups.”

The appeals court suggested, “The government effectively argues that there is only one enormous ‘anti?terrorism’ investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.”

In adopting this rationale, the very concept of an “investigation” is redefined to mean anything benefiting the “counterterrorism intelligence efforts of the United States government.”

This rationale underpins nearly all of the surveillance programs, which have been exposed by Snowden and subject to scrutiny.

What US government officials have defended when downplaying the significance of Snowden’s revelations is a boundless authority to seize any and all Americans’ data if the data could hypothetically be useful some day in the “war on terrorism.” Yet, as the appeals court understood—even though it chose not to decide any of the constitutional issues raised in the lawsuit—is that dragnet surveillance programs operated in this manner implicate the Fourth Amendment because records are being seized. The programs also implicate the First Amendment because there is a reasonable argument to e made that associational rights are violated, which can have a “chilling effect” on those unlawfully targeted.

Overall, the significance of this decision is that the appeals court has put forward an argument that suggests all current, dragnet and secret surveillance programs, as well as all previous but now allegedly discontinued, dragnet and secret surveillance programs, are unlawful because they have been established by agencies like the NSA without any public debate on their privacy implications. And, besides the fact that it entirely validates Snowden’s decision to blow the whistle, the decision should also compel Congress to bring any dragnet surveillance program out of the shadows so that such perverted concepts of what is legal are fully discredited once and for all.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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