ACLU Asks Appeals Court to Halt NSA’s Resumption of Bulk Phone Records Collection

NEW YORK – The American Civil Liberties Union and the New York Civil Liberties Union today asked the U. S. Court of Appeals for the 2nd Circuit to halt the National Security Agency’s bulk collection of Americans’ call records, arguing that immediate action is necessary because the government has resumed surveillance that the appeals court ruled to be illegal.

“This dragnet surveillance program should never have been launched, and it should certainly be terminated now,” said Jameel Jaffer, deputy legal director of the ACLU. “Not even the government contends anymore that the program has been effective, and the 2nd Circuit has already concluded that the program is illegal. It’s a needless and unlawful intrusion into the privacy rights of millions of innocent Americans.”

The ACLU and the NYCLU filed their challenge to the NSA’s call-records program in June of 2013, just a few days after the program was exposed by NSA whistleblower Edward Snowden. In May, a three-judge panel of the 2nd Circuit agreed with the ACLU that the program is unlawful because the statute the government relies on to justify it — Section 215 of the Patriot Act — does not permit the gathering of Americans’ sensitive information on such a massive scale. In its ruling, the court stated that it would not order a stop to the surveillance because the provision was set to expire on June 1 and Congress was debating whether the provision should be reauthorized, modified, or allowed to sunset.

The program was temporarily halted on June 1 when Congress let Section 215 expire. On June 2, Congress passed the USA Freedom Act, reform legislation that prohibits bulk collection of call records by the government and requires that the NSA get an individualized court order from the Foreign Intelligence Surveillance Court before obtaining call records from telecommunications companies.

The government argued to the FISC that the new law allows it to continue bulk collection during a 180-day transition period, even though the language regarding collection has not changed since the 2nd Circuit held that it does not allow such surveillance. The FISC agreed with the government and allowed the NSA to revive the program.

The brief filed by the ACLU today argues that the government is misinterpreting the law, and that the law does not in fact permit bulk collection during the transition period.

“The crucial fact . . . is that the language the government is relying on to collect call records now is precisely the same language this Court has already concluded does not permit that surveillance,” the brief states. “There is no sound reason to accord this language a different meaning now than the court accorded it in May.”

The ACLU also argues that bulk collection of call records would be unconstitutional even if Congress had authorized it, because it violates rights guaranteed by the First and Fourth Amendments.

“The government says it will wind down this unconstitutional program eventually, but the Constitution doesn't have a grace period,” said Alex Abdo, the ACLU staff attorney who argued the case before the 2nd Circuit. “Bulk collection is unconstitutional and must end.”

Today’s brief is available here:
https://www.aclu.org/legal-document/aclu-v-clapper-aclu-motion-prelimina...

The May 7 ruling is at:
https://www.aclu.org/sites/default/files/field_document/clapper-ca2-opinion.pdf