Court refuses to shut down NSA program that it declared illegal

A federal appeals court declined on Thursday to immediately shut down a controversial government surveillance program, months after declaring it illegal.

Instead, the Second Circuit Court of Appeals ruled that Congress was “clear” in allowing the National Security Agency’s (NSA) data gathering to continue for another month.

{mosads}As such, the government’s sweeping collection of people’s phone records should continue, the court ruled.

“Congress has balanced privacy and national security by providing for a 180‐day transition period [to a new system], a decision that it is uniquely suited to make,” Judge Gerard Lynch wrote on behalf of the three-judge panel.

“Congress’s decision to do so should be respected.”

While not unexpected, the ruling appears to foreclose the possibility that the NSA’s program will end before Nov. 29, the deadline that Congress gave it to end the current surveillance and switch to a new system.

Under the NSA’s current system, which was revealed by former contractor Edward Snowden, the spy agency warrantlessly sweeps up millions of Americans’ phone metadata. This data does not include the content of someone’s phone call, but instead information about the numbers involved in a phone call, when the call occurred and how long it lasted.

Congress ended the current system this summer, giving the NSA six months to switch to a new regime in which it must request a narrower set of records from private phone companies.

Passage of the law to end the current system, called the USA Freedom Act, came just days after the Second Circuit ruled that the phone records program “exceeds the scope of what Congress has authorized.” The Obama administration had argued that the program was justified by a portion of the Patriot Act.

Following that ruling, privacy advocates at the American Civil Liberties Union asked the court to shut down the program immediately. Congress had never authorized the surveillance in the first place, it argued, so any continuation of the program was merely the continuation of an illegal program.

On Thursday, the court denied that request.

“While the present Congress cannot tell us what the Congress that passed the Patriot Act intended to authorize, its intent in passing the Freedom Act is clear,” Lynch wrote.

“We agree with the government that Congress reached a compromise, supported by the President: to end the telephone metadata program, but to allow for a180‐day transition period.” 

In a statement, ACLU attorney Alex Abdo noted that the NSA’s bulk collection of phone records “will end in just a few weeks,” regardless of the court’s decision.

“All Americans should celebrate that fact,” he said.

This story was updated at 1:38 p.m.