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Why New Ruling Against NSA’s Illegal Phone Records Program Will Have Big Implications

21st Century Wire says…

We’re now two years down the road from the first Snowden leak, this week’s NSA ruling in Washington will send the ACLU’s lawsuit back to the District Court.

Those 2016 Presidential candidates who are not afraid of controversy (not the ‘front-runners’, of course) have seized on this issue as central one:

“Critics of the NSA were quick to commend the ruling, with Sen. Rand Paul (R-Kentucky), a contender in next year’s presidential race, saluting the Second Circuit “for upholding our Constitution and protecting our Fourth Amendment rights.”

Sen. Bernie Sanders (D-Vermont), the GOP hopeful’s potential opponent in 2016, issued a statement as well saying,In my view, the NSA is out of control and operating in an unconstitutional manner.” (Source: RT)

The Patriot Act’s hugely controversial Section 215 blanket government spying provision is scheduled to expire, or ‘sunset’, in only a few weeks – unless Capitol Hill lawmakers can agree on a “reauthorization” bill.

Problem, reaction, solution. Is it any wonder why we’ve seen a ‘resurgence of terror’ inside the US during these last weeks?

As always, the timing uncanny…

FILE - This June 6, 2013 file photo shows a sign outside the National Security Agency campus in Fort Meade, Md. The Obama administration knew in advance that the British government would oversee destruction of a newspaper’s hard drives containing leaked National Security Agency documents last year, newly declassified documents show. The White House had publicly distanced itself from doing the same against an American news organization. (AP Photo/Patrick Semansky, File)

The Switch

A federal appeals court ruling that the National Security Agency’s collection of millions of Americans’ phone records is illegal could undercut more than just that program.

The 2nd Circuit Court of Appeals ruled Thursday that the phone records program violated the law used to authorize it, the USA Patriot Act. The program had been approved by the secretive Foreign Intelligence Surveillance [FISA] Court, but it was not disclosed publicly until revealed by documents from former government contractor Edward Snowden.

[NSA program on phone records is illegal, court rules]

The government argued that the huge volume of  phone records were relevant to counter-terrorism investigations because searching through them later might help discern links to terrorism suspects. But the court didn’t buy it, ruling that such an interpretation of “relevance” was “unprecedented and unwarranted.” The government’s argument, the judges said, boiled down to “the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations.”

Knocking down that interpretation could have consequences that go beyond the program and even the part of the USA Patriot Act used to authorized it, Section 215.

First, it could mean a blow to other programs relying on the same part of the USA Patriot Act, experts said — for example, a potentially ongoing program tracking international money transfers that includes millions of Americans’ financial and personal data that was revealed by the Wall Street Journal last year.

[The D.C. coffee shop where ‘Snowden’ is filming? It was an actual setting for the famed leaker’s dates.]

And because many laws rely on very similar relevance language, the decision should bring new scrutiny to other programs, experts said. “As I understand it, this ruling should have implications for several surveillance statutes,” said Harley Geiger, advocacy director and senior counsel at the Center for Democracy & Technology.

Why? Basically that’s due to a bit of congressional laziness, said Jonathan Mayer, a lawyer and computer scientist affiliated with Stanford University’s Center for Internet and Society. “Most surveillance statutes are copy and paste,” he said. “There’s certain relevance language that is replicated everywhere.”

The court itself noted as much, citing the example of two bills that use the same language to compel the production of information relevant to authorized terrorism investigations — one about telephone toll‐billing and another about educational records. (Those bills did not appear to be used for or intended to authorize bulk surveillance.)

But other programs that collected massive amounts of data on Americans relied on similar relevance language. A program that collected information about e-mails until 2011, for example, was set up under a set of legal authorities known as “pen register/trap and trace.” And a Justice Department and Drug Enforcement Administration program that harvested records of international calls by Americans to as many as 116 countries for more than two decades since 1992 relied on an administrative subpoena power that required that the information gathered be “relevant or material” to an investigation, USA Today reported.

[What the 2016 candidates have to say about the NSA court ruling]

The court’s rejection of the broad interpretation of relevance in this case could make it nearly impossible for the government to argue in favor of domestic bulk collection programs such as these without it being explicitly spelled out in the law, according to Mayer.

That could have significant weight in the legislative debate over the phone records program. Section 215 is set to expire on June 1, and Senate Majority Leader Mitch McConnell (R-Ky.) is pushing for a bill that would renew it. But for the phone program to continue after passage, the government would have to convince the Supreme Court to reverse the 2nd Circuit’s decision.

And a bill to modify the law so that, supporters argue, the NSA can get access to records while still protecting Americans’ data — called the USA Freedom Acct — has split privacy advocates. One coalition of privacy advocates argues that the bill essentially legalizes mass surveillance and could “eviscerate numerous court challenges” — presumably, challenges like the one just won in the 2nd Circuit.

But one of the key arguments from privacy advocates who support the bill is that it reins in bulk collection by the government, which may have continued under other authorities even if Section 215 is sunset. That argument may be less compelling to some now. “The 2nd Circuit just did a big piece of USA Freedom,” Mayer said.

[Deadline looming, dozens of groups urge Congress to reform bulk surveillance]

Some members of Congress are already citing the decision as a reason to reject the current version of the USA Freedom Act, including Rep. Justin Amash (R-Mich.), who led a campaign to defund the phone records program in 2013.

Continue this story at The Switch

READ MORE NSA NEWS AT: 21st Century Wire NSA Files



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