May 14, 2015
On May 7th, 2015, a three judge panel for the Second Circuit Court of Appeals became the first appellate court to rule on the legality of a government surveillance program, put in place in the interests of national security.
The claims in A.C.L.U. v Clapper, brought after the surveillance was revealed by Edward Snowden 2013, raised statutory and constitutional challenges to the National Security Agency’s (NSA) “telephone metadata program.” Under this program, the NSA collects metadata associated with telephone calls made by Americans, and aggregates it into a data bank where it can be searched. This data is created by telephone companies in their normal course of business, but under the program companies are explicitly required to give that information to the government on an ongoing basis.
The government went into significant detail about metadata, and pointed out this type of data does not include voice content of telephone conversations, rather it includes details of calls including length of call, phone number called, phone number from which the call was made, etc. The government maintained that the information does not include identities or names of individuals. Appellants and amici countered with evidence from a recent study that showed metadata can reveal a surprising amount of private information such as political or religious affiliations, social status, or whether a person is involved in an intimate relationship.
After a thorough discussion of the history of intelligence gathering in the United States and efforts of counter-terrorism, the Court concluded the language of the Patriot Act, specifically §215, could not be construed to authorize the telephone metadata program.
What makes this case particularly interesting is the fact that the issues decided could soon become moot. Section 215 is set to expire on June 1st of this year, meaning Congress will have an opportunity to change its terms, or simply choose not to reauthorize it. The Court did not reach constitutional arguments, as events in the near future could significantly alter the issues. Ultimately, government interests in protecting our nation’s security will most certainly continue to clash with privacy interests of citizens.