WASHINGTON — A federal appeals court ruled Thursday that the National Security Agency’s collection of millions of Americans’ phone records violates the Patriot Act, the first appeals court to weigh in on a controversial surveillance program that has divided Congress and ignited a national debate over the proper scope of the government’s spy powers.

In a blistering 97-page opinion, a three-judge panel of the U.S. Court of Appeals for the Second Circuit overturned a lower court and determined that the government had stretched the meaning of the statute to enable “sweeping surveillance” of Americans’ data in “staggering” volumes.

The ruling comes as Congress prepares for what could be a contentious debate this month over whether to reauthorize the statute that underpins the NSA program or let it lapse.

The NSA’s mass collection of phone records for counterterrorism purposes – launched after the Sept. 11, 2001, terrorist attacks – was revealed by former agency contractor Edward Snowden in June 2013. The revelation sparked outrage but also steadfast assertions by the Obama administration that the program was authorized by statute and deemed legal by a series of federal surveillance court judges.

But the judicial rulings had taken place in secret, until the Snowden leaks forced disclosure of once-classified opinions. Under the program, the NSA collects “metadata” – the records of times, dates and durations of all calls – but not call content.

The government has argued that huge volumes of records – being collected from U.S. phone companies each day and stored in a database – are relevant to counterterrorism investigations because any record could later prove critical in identifying terrorism suspects. A series of judges on the secretive Foreign Intelligence Surveillance Court have agreed.

The appeals court, however, said “such an expansive concept of ‘relevance’ is unprecedented and unwarranted.”

The judges noted that the government “never attempted to identify to what particular ‘authorized investigation'” the data of all Americans’ phone calls would be relevant. “At its core,” the panel said, “the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations.”

Saying the collection has amounted to “an unprecedented contraction of the privacy expectations of all Americans,” the court said the government’s interpretation of the law would allow for the bulk collection and storage of data associated with Americans’ financial records, medical records, and email and social media communications.

With the statute due to expire June 1, a bipartisan coalition of lawmakers in the House and Senate is seeking to renew it with modifications that sponsors say will enable the NSA to get access to the records it needs while protecting Americans’ privacy.


Senate Majority Leader Mitch McConnell, R-Kentucky, and the chairman of the Senate Intelligence Committee, Richard Burr, R-North Carolina, have meanwhile introduced a bill to maintain the program.

On Thursday, reaction to the court decision on the Senate floor drew sharp, conflicting responses. “According to the CIA, had these authorities been in place more than a decade ago, they would have likely prevented 9/11,” McConnell said.

Senate Minority Leader Harry Reid of Nevada chided McConnell for not bringing to the floor the bipartisan bill – the USA Freedom Act – that would reauthorize and modify the law. “Instead of bringing the bipartisan NSA reform bill up for a vote, Sen. McConnell is trying to force the Senate to extend the bulk data collection practices that were ruled illegal today,” he said.

FBI Director James Comey told reporters that if Congress lets the NSA program die, the FBI will lose a useful tool. “But,” he said, if that were to happen, “we press on.”

Administration officials have indicated that they are likely to support the bipartisan reform legislation. But the American Civil Liberties Union and a coalition of groups on the left and the right are pushing to let the statute, known as Section 215 of the Patriot Act, simply lapse on grounds that it would end the NSA bulk collection while leaving in place adequate powers for the government to pursue terrorism cases.

The appeals court, noting the impending deadline for the program, denied to grant a preliminary injunction to stop the NSA from collecting the ACLU’s call records.

“In light of the asserted national security interests at stake, we deem it prudent to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape,” the judges wrote.


The ACLU, the plaintiff in the case, cheered the decision.

“This decision is a resounding victory for the rule of law,” said ACLU staff attorney Alex Abdo, who argued the case before the panel in September. “For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority. The court rightly rejected the government’s theory that it may stockpile information on all of us in case that information proves useful in the future.”

White House officials said Thursday they were evaluating the decision.

The issue is one that has split lower courts, making it more likely, some analysts say, that it will be taken up by the Supreme Court. The U.S. District Court for the District of Columbia in December 2013 held that the program was probably unconstitutional. The appeals court for the District has not yet ruled on that appeal.

In its ruling, the U.S. Court of Appeals for the Second Circuit said it need not address the plaintiffs’ claims that the NSA program violated their First and Fourth amendment rights because the panel had already concluded the program was unlawful. The court rejected the government’s argument that Congress ratified the program by twice reauthorizing Section 215, noting that many members and the public were unaware of how the legislation was being interpreted. It also rejected the government’s argument that the ACLU lacked standing to challenge the program.

Michael Sussmann, a former Justice Department official who is now a partner at Perkins Coie practicing surveillance law, called Thursday’s ruling “sweeping and unambiguous.”

“Only the Supreme Court will be able to bring harmony to these polar opposite views of the program and the law,” he said.

Only subscribers are eligible to post comments. Please subscribe or to participate in the conversation. Here’s why.

Use the form below to reset your password. When you've submitted your account email, we will send an email with a reset code.