For well over a year, Congress has been struggling to reform the National Security Agency program that gathers information about virtually every telephone call sent or received in the United States. On Thursday, a ruling from a panel of judges on the US Court of Appeals for the Second Circuit has warned Congress that the program is illegal, and that it cannot continue without some new authorization.
Yet, while the court did declare the NSA program illegal, it decided not to forcibly stop it. Instead, it passed responsibility back to Congress, which faces a fast-approaching deadline.
If Congress can't quickly agree on how to fix the program, the NSA will lose its authority to collect phone records on June 1.
What is this NSA program?
As part of its effort to track terrorist activity, the NSA has been forcing phone companies to turn over information about every phone call passing through their systems.
This doesn't include audio of the call itself. Instead, companies hand over such details as when the call was placed, who made it, the number being dialed, and how long the call lasted. Such information is called metadata, and while it may seem innocuous, it can reveal a tremendous amount of information.
For example, if you're suddenly placing a lot of calls to your doctor, the NSA will know something about your health. Call Alcoholics Anonymous and they know your struggles.
Didn’t Congress authorize this program?
Not exactly. The NSA and the president have argued that the program is authorized by Section 215 of the USA Patriot Act, which says the government can collect "any tangible thing" that is relevant to an investigation.
The judges on Thurdsay found that the bulk collection of phone records doesn't fit this description, because it's not tied in any way to a particular investigation.
So did the judges strike down the program?
Actually, no. Even though the judges determined that collecting phone records was illegal, the court chose not to issue an injunction, instead sending it back to a lower court for further review.
Also, they left open the question of whether the law is constitutional. Here's the difference. If the program is illegal — which is what they said — Congress can change Section 215 or otherwise pass a law to explicitly authorize the collection of phone records.
By contrast, if the program is unconstitutional, there's nothing Congress can do to make it legal, short of changing the US Constitution. Obviously, that's a much higher standard, and the court chose not to address it.
Why is this happening now?
The Patriot Act was passed in 2001, and the NSA telephone metadata program was first authorized in 2006. But few outside of the intelligence community even knew this program existed until Edward Snowden leaked information about it in 2013. Six days after the leaks surfaced, the ACLU had filed suit.
Similar suits have been moving forward in other parts of the country, and a panel of privacy experts appointed by the US government has already found that the program is illegal.
The appeals court's ruling gains significance because of its timing, coming as it does amid a heated congressional debate.
What happens next?
Congress faces a June 1 deadline, after which Section 215 will expire and the NSA phone records program will lose its authorization.
Essentially, Congress has two choices. If members want to keep the program as is, they need to pass some new authorization.
Alternatively, if they want to rein in the NSA, lawmakers can specify exactly what the agency can and can't do. Currently there is a bill moving through both chambers that would require the NSA to ask phone companies for particular bits of information, rather than gathering everything at once.
One major consequence of the appeals court's ruling is that it's no longer possible for Congress to simply reauthorize Section 215 without changes and expect the NSA program to go forward. That approach had been favored by Senate Majority Leader Mitch McConnell, but it no longer seems tenable — precisely because an appeals court now has found that Section 215 can't be used justify the bulk collection of data.
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Evan Horowitz digs through data to find information that illuminates the policy issues facing Massachusetts and the U.S. He can be reached at firstname.lastname@example.org. Follow him on Twitter @GlobeHorowitz