NSA Data-Sweep Lawfulness Challenged in NY Appeal Hearing

The National Security Agencys collection of phone records, challenged by the American Civil Liberties Union as an illegal government attempt to put millions of Americans under permanent surveillance, drew skeptical questions from a federal appeals court.

A three-judge panel in New York heard arguments today in the ACLUs appeal of a lower-court ruling that the program is legal. Stuart Delery, the Justice Department lawyer defending the collection of call data, faced skeptical questions from the judges, including one on whether the government can also collect peoples bank records.

I just dont understand the argument as to whats so special about telephone records that makes them so valuable, so uniquely interactive or whatever, that the same arguments youre making dont apply to every record in the hands of a third-party business entity of every Americans everything, U.S. Circuit Judge Gerard Lynch told Delery.

The ACLU suit, filed in June 2013, is one of several challenging the NSAs data collection program first revealed by former contractor Edward Snowden. A U.S. district judge in Washington called the program almost Orwellian in a December ruling and said it probably violates constitutional privacy rights. The Obama administration is appealing.

The NSA collects information about calls made and received on major U.S. telephone networks, including the phone numbers of callers and recipients, and the time and length of calls. The government claims it uses the information to uncover U.S. contacts of international terrorist organizations.

While the collection is indeed broad, the scope of counterterrorism investigations is unprecedented, District Judge William H. Pauley III wrote in the Dec. 27 decision under consideration by the panel. The question of whether that program should be conducted is for the other two coordinate branches of government to decide.

In addition to Lynch, a former prosecutor, defense lawyer and law professor appointed to the appeals court by President Barack Obama, the panel consisted of Judges Robert Sack, appointed by President Bill Clinton, and U.S. District Judge Vernon Broderick, who was appointed by Obama and is sitting on the panel by designation.

The ACLU argued that the program isnt authorized by the Patriot Act, a law passed after the Sept. 11, 2001, terrorist attacks that expanded the governments surveillance and data collection. It also argued the program violates the Fourth Amendment to the U.S. Constitution, which protects against unreasonable searches and seizures.

The governments legal theories are a road map to a world in which the government routinely collects vast quantities of information about Americans who have done absolutely nothing wrong, ACLU lawyer Alex Abdo said today in court.

The government argued in court papers that investigators review only data related to contacts within one or two steps of a suspected terrorist, a small percentage of the records it collects. The U.S. argued that the ACLU and other nonprofit groups challenging the NSA program lack legal standing because they cant show that their telephone data were actually reviewed by the government.

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NSA Data-Sweep Lawfulness Challenged in NY Appeal Hearing