US court will not halt NSA phone spy program before ban

29 Oct 2015 | Author: | No comments yet »

Appeals court won’t block last month of NSA phone surveillance program.

A US appeals court on Thursday refused to immediately halt the government’s bulk collection of millions of Americans’ phone records during a “transition” period to a new federal scheme that bans the controversial anti-terrorism surveillance. An appeals court Thursday upheld the US government’s systematic surveillance of American telephone calls for the duration of a Congress-approved transition period that expires next month.

A federal appeals court panel that previously ruled the National Security Agency’s controversial phone-metadata program was illegal declined Thursday to issue an order blocking the program in the remaining month before it is slated to shut down. Congress has allowed bulk telephone data — the subject of leaks by former intelligence contractor Edward Snowden — to continue until a 180-transition period expires on November 29.

The NSA’s aim is to find links between terror suspects, but privacy advocates argue the program unconstitutionally violates Americans’ privacy rights. Thursday’s decision rejected a request by the American Civil Liberties Union for a preliminary injunction to stop the program until the narrower scheme begins on 29 November.

In light of the plan to shut the program down next month, the judges declined to wade into the question of whether the surveillance effort is currently violating the Constitution. “We agree with the government that we ought not meddle with Congress’s considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. In June, Congress passed a law that will end collection of the data, instead allowing the NSA to search the phone companies’ records only if it gets court approval.

All Americans should celebrate that fact,” he said in a statement. “It will now be up to the district court to address to what extent the government must purge the call records it collected unlawfully. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief,” Lynch wrote. “Allowing the program to remain in place for the short period that remains at issue is the prudent course. But remember that the ACLU’s challenge to bulk collection was mounted on both statutory and constitutional grounds, the latter of which the Second Circuit was able to avoid in its earlier ruling because of its conclusion that, prior to the enactment of the USA Freedom Act, bulk collection was unauthorized by Congress. Now that it has held that it is authorized during the transitional period, that therefore tees up, quite unavoidably, whether bulk collection violates the Fourth Amendment.

The new law halts its ability to scoop up and store metadata — telephone numbers, dates and times of calls — from millions of Americans who have no connection to terrorism. The same court had previously found that the earlier version of the program wasn’t properly authorized by Congress because lawmakers didn’t understand they were approving the phone surveillance when they enacted the Patriot Act in 2001. To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless. The legislation calls for an expedited system to analyze that data in connection with terrorism investigations, but the measure imposes no requirement on phone companies to store the data for a particular period of time.

For starters, if the plaintiffs are correct, they are currently being subjected to unconstitutional government surveillance for which they are entitled to a remedy. But more generally, the notion that constitutional adjudication of a claim with a short shelf-life is “fruitless” utterly misses the significance of the establishment of forward-looking judicial precedent, especially in a day and age in which courts are allowed to (and routinely do) avoid resolving the merits of constitutional claims in cases in which the relevant precedent is not “clearly established.” Maybe, if this were the kind of constitutional question that was unlikely to recur, there’d be more to the Second Circuit’s avoidance of the issue in this case.

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