The Cable

The NSA Isn’t Likely to Miss Its Illegal Bulk Phone Collection Program

A federal court ruled the NSA's collection of American phone data is illegal. The agency isn't likely to miss it.

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A federal court ruled Thursday the National Security Agency’s bulk collection of American phone data is illegal and not authorized by the Patriot Act, striking down an argument made by both the Bush and Obama administrations. Privacy advocates are celebrating, but the NSA isn’t likely to miss it if it ultimately goes away.

That’s because it may not actually have been that effective. Then-NSA Director Keith Alexander told lawmakers in 2013 that the program has stopped only one or two attacks; he urged President Barack Obama that same year to store phone data with telecommunications companies, not within the government. Also in 2013, a presidential panel reviewing the extent of NSA surveillance recommended the president stop bulk collection of data and allow a third-party to hold it. Others have said the program’s cost$33.3 million per year — isn’t worth the meager results its produced.

Still, some privacy advocates are praising the decision, which comes nearly two years after former NSA contractor Edward Snowden spilled many of the the NSA’s secrets to the world. The American Civil Liberties Union brought the lawsuit the three-judge panel for the United States Court of Appeals for the Second Circuit; after the ruling, the group took to Twitter to celebrate.

“We think it’s a great outcome,” Marc Rotenberg, president of the Electronic Privacy Information Center, a leading privacy advocacy group, told FP after the ruling. “It’s an important reminder of the role that courts play in checking police agencies.”

The ruling leaves in place Section 706, which allows the government to collect internet traffic and email information. This provision allows the NSA to collect data on people outside of the United States.

Authorization for both provisions is set to sunset this summer. The court ruling does not require collection to immediately stop, but notes the looming deadline for the provision will force Congress to take action on bulk collection of American phone data. It also leaves the door open for a court to revisit the case if Congress extends the provision’s authority.

Whether lawmakers will do that remains to be seen. The House of Representatives looks ready to pass legislation that would remove Section 206 from the Patriot Act, but a similar bill died in the Senate in November 2014.

Similar debates about how to balance civil liberties with the need to prevent terror attacks are happening abroad as policymakers grapple with how to prevent militants from the Islamic State and its affiliates from hitting their countries. France’s lower house of parliament recently passed a bill that would give French intelligence the ability to collect terabytes of data through digital mass surveillance. Canadian politicians are also considering a bill that many are calling that country’s Patriot Act.

Back in Washington, more than 50 privacy advocates and civil rights groups sent a letter to Senate Majority Leader Mitch McConnell (R-Ky.), who wants to continue the program,  calling on him to reverse course. Some of those advocates were less enthusiastic about Thursday’s ruling.

“This is the tip of the iceberg,” Daniel Schuman, policy director of the progressive group Demand Progress, told FP. He said that the government still has vast surveillance capabilities, and urged a more holistic approach to reform as opposed to dealing with individual provisions of laws authorizing spying.

“We have 14 years of illegal information gathering. It’s great the court said it’s not permissible, but it took that long to get to this point,” he said. “This is a very small part of a much larger puzzle.”

Photo Credit: Mandel Ngan/Getty Images

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