Second Circuit Blasts NSA Phone Metadata Collection Program

In a decision fresh off the presses, the Second Circuit has put the kibosh on the NSA’s now-infamous warrantless collection of America’s phone records. The decision vacates Judge Pauley’s December 2013 decision dismissing the ACLU’s challenge to the program.

In a comprehensive opinion written by Judge Gerard Lynch (empaneled with Judge Robert Sack and District Judge Vernon Broderick, sitting by designation), the court sharply criticizes the NSA for exceeding congressional authority:

Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. 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 in the legislative history of § 215, and the language of the statute, on its face, is not naturally read as permitting investigative agencies, on the approval of the FISC, to do any more than obtain the sorts of information routinely acquired in the course of criminal investigations of “money laundering [and] drug dealing.”

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By Sammi Jones, 8am

To the government’s argument that the program should be beyond challenge, the opinion states:

In short, the government relies on bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence in an effort to find an implied revocation of the APA’s authorization of challenges to government actions. That is not enough to overcome the strong presumption of the general command of the APA against such implied preclusion. Congress, of course, has the ability to limit the remedies available under the APA; it has only to say so. But it has said no such thing here. We should be cautious in inferring legislative action from legislative inaction, or inferring a Congressional command from Congressional silence.

It wasn’t all good news for fans of privacy though. The Second Circuit did not reach any of the constitutional issues urged by the ACLU, limiting its decision to statutory authorization. It also upheld the denial of a preliminary injunction to halt the program while the matter is litigated, opting instead to boot that question back to the S.D.N.Y. to decide in light of this opinion.

So keep that in mind before your next phone call.