Victory: Federal Appeals Court Declares NSA Domestic Spying on Telephone Calls Illegal, ‘Staggering’ in Scope, and Unauthorized by USA Patriot Act
By John W. Whitehead
Describing the National Security Agency’s (NSA) domestic spying program that collects data about virtually all telephone calls made in the United States as “staggering” in its scope and unauthorized by the Patriot Act, a federal appeals court has struck down the agency’s surveillance program, ruling that the program violates a federal law authorizing more limited investigations in support of national security. The unanimous decision in ACLU v. Clapper vacated a ruling upholding the NSA’s bulk collection of telephone metadata, which has continued since 2006, and instructed the lower court to consider whether to order the government to stop the surveillance. The Rutherford Institute filed an amicus curiae brief in the case likening the program to the abusive colonial-era general warrants and writs of assistance which prompted the Framers of the U.S. Constitution to adopt the Fourth Amendment’s ban on unreasonable searches and seizures.
“James Madison, who was one of the primary drafters of our Constitution, once warned that we should take alarm at the first experiment with our liberties,” stated John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “While it is heartening that at least some Americans are starting to heed Madison’s warning, this ruling doesn’t alter the fact that the government not only views the citizenry as suspects but treats them as suspects, as well. The fact that the NSA is routinely operating outside of the law and overstepping its legal authority by carrying out surveillance on American citizens is a result of giving the government broad powers and allowing government agencies to routinely sidestep the Constitution.”
In the weeks after the September 11, 2001, terrorist attacks, the NSA began a program of collecting telephone call records in bulk. After continuing the program without judicial authorization, in 2006, the government sought and obtained authorization from the FISC, a special court established to consider government applications for surveillance of foreign agents and which conducts its activities largely in secret. The 2006 order, which has been renewed several times since, allows the NSA to collect “telephone metadata,” which includes the telephone numbers placing and receiving the call, the date, time and duration of the call, and other session-identifying information, and applies to every call placed or received within the United States. The government retains this information and has the ability to conduct computer analysis to determine patterns of behavior that can reveal personal information about citizens. The program remained secret until June 2013 when information leaked by former NSA contractor Edward Snowden was made public. That same month, the American Civil Liberties Union and affiliated entities filed a lawsuit alleging that the program violated statutory restrictions imposed by the Foreign Intelligence Surveillance Act and the Fourth Amendment.
In December 2013, a federal district court in New York rejected the legal challenge to the government’s surveillance and upheld the program, ruling that because telephone users “voluntarily” disclose information to telephone companies, the collection of information by the government does not constitute an illegal search. In weighing in on the case, The Rutherford Institute argues that “the bulk metadata collection order is no different from the abusive general warrants colonies suffered under and which were intended to be outlawed with the adoption of the Bill of Rights.” Institute attorneys have asked the court to reverse the lower court decision on the grounds that it runs headlong against the principles and purposes that were the foundation for the adoption of Bill of Rights prohibition on unreasonable searches and seizures.