WATCHDOGS: NSA spying is illegal under the PATRIOT ACT, but it’s legal under a judge’s order.
That’s according to a judge who recently ruled that the NSA’s bulk data collection of metadata on US phone calls is illegal.
The decision is based on a case from the US Court of Appeals for the Fourth Circuit in San Francisco, which last year ordered the government to stop bulk collection of Americans’ phone records.
But the court was also struck down by a federal appeals court in Virginia.
The government appealed to the Fifth Circuit, which this week sided with the government, rejecting a lower court’s ruling that the bulk collection was legal under Section 215 of the Patriot act.
The Fourth Circuit decision also comes as Congress has struggled to pass an overhaul of the USA Patriot Act, which includes provisions that would make it easier to collect phone records from US residents.
Lawyers for the government argued that the Section 215 collection was unconstitutional and that Section 215 was narrowly tailored to target foreigners who were “reasonably believed to be engaged in espionage or sabotage”.
“There’s no doubt that the surveillance activities of the NSA were directed against foreign nationals,” the government said in a statement.
“This Court has not yet concluded whether Section 215 is lawful under the Fourth Amendment.”
But the US government’s argument in the Fourth Court of Appeal that Section 213 of the PATRA, the law that created the bulk metadata collection, is broader than it appears in the court’s opinion was dismissed on Tuesday by Judge David Sentelle, who said Section 213 is broad enough to allow for the collection of information about US citizens who are not in the country.
The court said it could be argued that Section 214 is more broadly interpreted, but that it would be difficult to justify a narrower interpretation of Section 214 than Section 215.
Section 214 of the law authorises the NSA to collect information about Americans’ communications in a bulk fashion.
It authorises for the NSA “anyone within the United States who reasonably believes that the communication to be relevant to an authorized investigation or prosecution”.
That means, for example, that the government could collect the information about an American’s telephone conversations if it thought they were related to terrorism, which the law defines as activities that “might reasonably be expected to result in the detection, prevention, or prosecution of an act of international terrorism”.
But the government’s case also included the argument that the collection was lawful under Section 213 because the bulk phone records were collected to help “protect US national security interests”.
Section 213 of that law also says that the information collected is relevant to the “defence” of US “national security interests”, and does not require a warrant or court approval.
“The bulk telephone metadata collection does not reveal the contents of calls,” Judge Sentelle wrote in the opinion.
“It merely contains information on the number of calls, the duration, the content of calls and the time and place of calls.”
In the ruling, Sentelle cited a 2014 memo from the Office of Legal Counsel, which said Section 215 authorises bulk collection only if it is “necessary to conduct an investigation”.
“The statute requires that the incidental collection of communications ‘are not incidental to the lawful investigation of a crime or to protect against an imminent threat to the nation,’ ” the memo said.
“That is, the collection is incidental to an investigation only if its primary purpose is to identify the communication with which the target of the investigation is reasonably believed to have engaged.”
In a separate decision, Judge Richard Leon rejected the government argument that Section 212 of the legislation was narrowly limited.
He ruled that Section 207 of the Act, the provision allowing the government and private companies to collect Americans’ records without a warrant, does not apply to the bulk data collecting that the Supreme Court in January ruled was illegal.
He wrote:”We are not persuaded that Section 208 of the statute is so narrow as to permit a government to obtain a warrant to obtain the records.”
But he also rejected a government argument, that Section 218, which allows private companies such as Google to obtain records without an individual’s permission, was broad enough.
He said:”Section 218 does not authorize the government or any individual to acquire a wide range of records from a single telephone number without a court order.”‘
They just want to get in the door’A court official involved in the case said the government had been unable to explain how it could possibly justify the bulk collecting of the data without a judge, which could violate the law.
“They just wanted to get into the door,” said the official, who spoke on condition of anonymity because he was not authorized to speak to the press.
“But we don’t believe that’s possible.”
The official added that the Justice Department did not dispute that the law allowed for the bulk bulk collection.
“In short, the court is saying, look, the statute allows for this, and the government says, well, it’s illegal,” the official said.’
I don’t think they want to go