Federal appeals court struggles over NSA program's legality

This undated photo provided by the National Security Agency (NSA) shows its headquarters in Fort Meade, Maryland.  NSA via Getty Images

WASHINGTON - Three U.S. appeals court judges struggled Tuesday over whether the National Security Agency's phone data surveillance program is an intelligence-gathering tool that makes the nation safer or an intrusive threat that endangers privacy.

The judges - all appointed by Republican presidents - expressed uncertainty about where to draw the line between legal surveillance and violations of constitutional rights.

Since 2006, the FBI has obtained orders from the secret Foreign Intelligence Surveillance Court directing phone companies to produce telephone "metadata" - outgoing phone numbers dialed and numbers from incoming calls - to the government.

The NSA consolidates the records into a searchable database in the hunt for terror suspects.

During the hour-and-a-half hearing, Judge David Sentelle questioned whether it is an invasion of privacy if the NSA simply collects the data, stopping short of using it.

Is it not an invasion "with mere collection?" asked Sentelle.

It is not, replied Justice Department lawyer H. Thomas Byron.

Arguing against the NSA program, activist attorney Larry Klayman disputed Byron, telling Judge Janice Rogers Brown that "collection is enough" to justify pursuing the lawsuit against the government.

Klayman won the first round in December when U.S. District Judge Richard Leon, a Republican appointee, ruled that the NSA's surveillance program likely runs afoul of the Constitution's ban on unreasonable searches. The government is seeking to have Leon's ruling thrown out.

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Federal appeals court struggles over NSA program's legality