NSA’s bulk phone record collections illegal, US court rules

The mass collection of phone records belonging to ordinary Americans under the National Security Agency’s vast surveillance dragnet is illegal, a US federal appeals court has ruled.

A three-judge appeals court in Manhattan urged the US Congress to take action on the bulk collection of phone records, a practice exposed by the whistleblower Edward Snowden, a former NSA contractor, in 2013.

The court overturned a ruling that year by a New York district court judge who rejected a challenge from the American Civil Liberties Union, which argued that the agency's surveillance on millions of telephone calls breached the constitutional rights of citizens.

Upholding the bulk collection as legal, Judge William Pauley III noted in December 2013 that the programme might have caught the September 11th, 2001 hijackers had it been in operation in time.

On Thursday, the US Court of Appeals for the Second Circuit said in a 97-page ruling that the USA Patriot Act, which permits the Federal Bureau of Investigation to collect business records in counterterrorism investigations, “cannot be legitimately interpreted to permit the systematic bulk collection of domestic calling records”.

The programme, when revealed, caused a storm of controversy, particularly after it emerged that the US government agency was spying on foreign leaders, including German chancellor Angela Merkel, a close ally.

The mass surveillance under the once-secret programme has been in operation since 2006 with approvals granted in private by federal judges sitting in the US foreign intelligence surveillance court.

Legal authorisation will lapse in June when the provision approving it under the Patriot Act expires.

Judge Gerard Lynch, writing the appeal court’s decision, said the provision “cannot bear the weight the government asks us to assign to it, and that it does not authorise the telephone metadata programme”.

In the ruling, the first review of the programme by a higher court, the judge urged Congress to grant proper authority for the programme, reform it significantly or allow it to expire.

The decision complicates matters for legislators who are divided on whether to renew the programme in a debate about national security interests and protections to civil liberties.

Republican Senate majority leader Mitch McConnell defended the bulk collection of call records, dismissing bipartisan legislation known as the USA Freedom Act that would effectively end the practice as “an untested, untried and more cumbersome system”.

The Bill, which is expected to pass the lower House of Representatives and has substantial support in the Senate, fell two votes short of passing the upper chamber in November.

Mr McConnell, a senator from Kentucky, has proposed another Bill extending bulk collection until December 2020.

He is supported by Republican presidential candidate Senator Marco Rubio, while another of the party’s challengers for the White House in 2016, the libertarian Senator Rand Paul, also from Kentucky, is the programme’s most vocal critic on Capitol Hill, citing the infringement on the privacy of individuals.

The White House supports an alternative way of preserving the NSA’s “essential capabilities” without holding bulk data.