A secret surveillance court ruled earlier this week that a federal court and Congress acted in error when it ended the NSA’s bulk collection of phone metadata last month, reinstating the once-secret program exposed by Edward Snowden in 2013.
In a move that has seen little media coverage, the Foreign Intelligence Surveillance Court ruled Monday that the National Security Agency may temporarily resume its stasi telephone surveillance practices for the time being.
The program expired on June 1 when Section 215 of the USA Patriot Act lapsed. Congress revived that provision on June 2 however, with the USA Freedom Act, but said the provision could not be used for six months in order to allow intelligence agencies time to move to a new system to collect and store data.
In May however, the Court of Appeals for the Second Circuit in New York, ruled in a lawsuit brought by the ACLU that Section 215 of the Patriot Act could not legitimately be interpreted as permitting bulk collection at all.
Congress did not include language in the Freedom Act contradicting the Second Circuit ruling or authorizing bulk collection even for the six-month transition. As a result, it was unclear whether the program had a lawful basis to continue.
After the Obama Administration applied to restart the program, the libertarian group FreedomWorks, filed a motion in the surveillance court saying it had no legal authority to permit the program to resume, even during the six month interim.
Judge Michael W. Mosman of the secret surveillance court rejected the challenge by FreedomWorks, Tuesday, and said the Second Circuit was wrong as well.
“Second Circuit rulings are not binding,” Mosman said. “This court respectfully disagrees with that court’s analysis, especially in view of the intervening enactment of the USA Freedom Act.”
When the Second Circuit issued its ruling that the program was illegal, it did not issue any injunction ordering the program to halt. The court said it would be prudent to see what Congress did as Section 215 neared its June 1 expiration, but the ACLU is now asking for such an injunction.
“Neither the statute nor the Constitution permits the government to subject millions of innocent people to this kind of intrusive surveillance,” ACLU lawyer Jameel Jaffer said. “We intend to ask the court to prohibit the surveillance and to order the NSA to purge the records it’s already collected.”
It is unclear whether the Second Circuit still considers the surveillance program to be illegal during this six-month transition period, but Judge Mosman said that because Congress knew how the surveillance court was interpreting Section 215 when it passed the Freedom Act, lawmakers implicitly authorized bulk collection to resume.