NEW YORK - A US spying programme that collects data about millions of Americans’ phone calls is illegal , a federal appeals court ruled on Thursday, completely rejecting the government’s legal justification for the programme.   The decision comes as a fight in Congress is intensifying over whether to end and replace the programme, or to extend it without changes.
In an opinion issued Thursday, a three-judge panel from the New York-based 2nd Circuit U.S. Court of Appeals held that a law Congress passed allowing collection of information relevant to terrorism investigations does not authorize the so-called “bulk collection” of phone records on the scale of the NSA programme. The judges did not address whether the programme violated the Constitution.
The existence of the NSA’s collection of “bulk telephony metadata” was first disclosed in 2013 by former NSA contractor Edward Snowden. Writing for the panel, Circuit Judge Gerard Lynch said Section 215 of the Patriot Act governing the collection of records to fight terrorism did not authorize what he called the NSA’s collection of a “staggering” amount of information, contrary to claims by the Bush and Obama administrations.
“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” Lynch wrote in a 97-page decision. “We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate.” The appeals court did not issue an order to stop the collection of data, noting that parts of the Patriot Act including Section 215 will expire on June 1. Lynch said it is for Congress to make clear whether it considers the NSA program permissible.
Federal appeals courts in Washington, D.C. and California are also considering whether the program is legal. The US Department of Justice had called the program necessary to protect national security.  Ned Price, a spokesman for the White House’s National Security Council, said President Barack Obama has been clear he wants to end the existing NSA programme, and is encouraged by the “good progress” in Congress to find an alternative preserving its “essential capabilities.”
The American Civil Liberties UNION (ACLU) did not immediately respond to a request for comment. Last week, the House Judiciary Committee voted 25-2 in favour of the USA Freedom Act, which would end the bulk collection of telephone data, and the bill is expected to pass the full House. A similar bill has been proposed in the Senate, with backing from some liberal Democrats and conservative Republicans, but has faced resistance from senators including Majority Leader Mitch McConnell. Passage remains uncertain.
Senator Rand Paul, a Republican and presidential candidate, tweeted after the decision that “phone records of law abiding citizens are none of the NSA’s business! Pleased with the ruling this morning.” Another presidential candidate, Democratic Sen. Bernie Sanders of Vermont, tweeted that “the NSA is out of control and operating in an unconstitutional manner.” Thursday’s decision overturned a December 2013 dismissal of the ACLU’s lawsuit by U.S. District Judge William Pauley in Manhattan, who called the NSA programme a government “counter-punch” to terrorism at home and abroad. Pauley had ruled 11 days after U.S. District Judge Richard Leon in Washington, D.C. said the “almost Orwellian” program might violate the Fourth Amendment. Moreover, Snowden, a former NSA contractor who lives as a fugitive in Russia, in June 2013 gave several media outlets classified information. Snowden exposed the agency’s collection of “bulk telephony metadata.” The data includes the existence and duration of calls made, but not the content of conversations.
U.S. Attorney General Loretta Lynch said at a Senate budget hearing on Thursday that NSA data collection was a “vital tool in our national security arsenal,” and that she was unaware of privacy violations under its existing programme. The 2nd Circuit is the first federal appeals court to rule on the NSA program’s legality. Federal appeals courts in Washington, D.C. and California are also considering the matter. While the government could appeal Thursday’s decision, it may wait for Congress.
If Congress changes Section 215, then courts may need to review what it does.

But if it reauthorizes Section 215, the issue could end up before the Supreme Court . Ned Price, a spokesman for the White House’s National Security Council, said President Barack Obama wants to end the NSA program, and is encouraged by the “good progress” Congress is making to find an alternative that preserves its “essential capabilities.”
Last week, the House Judiciary Committee voted 25-2 in favor of the USA Freedom Act, which would end the bulk collection of telephone data, and the bill is expected to pass the full House. A similar bill has been proposed in the Senate, but passage remains uncertain. Majority Leader Mitch McConnell and Richard Burr, the Republican chairman of the Senate Intelligence Committee, have introduced legislation to extend Section 215 and other parts of the Patriot Act through 2020.
The existing NSA program has repeatedly been approved in secret by a national security court established under a 1978 law, the Foreign Intelligence Surveillance Act. “FISA has been critically important in keeping us safe in America,” McConnell said on Thursday.
Other senators welcomed Thursday’s decision. Sen. Rand Paul, a Kentucky Republican and presidential candidate, tweeted that “phone records of law abiding citizens are none of the NSA’s business! Pleased with the ruling this morning.” Another presidential candidate, Democratic Sen. Bernie Sanders of Vermont, tweeted that “the NSA is out of control and operating in an unconstitutional manner.”
In upholding the NSA program in 2013, Pauley had called it a government “counter-punch” to terrorism at home and abroad. Pauley ruled 11 days after US District Judge Richard Leon in Washington, D.C. said the “almost Orwellian” program might violate the Fourth Amendment. Leon issued an injunction to block the program but put it on hold pending appeal.
Thursday’s decision did not resolve the ACLU’s claim that the NSA program violated the bar against warrantless searches under the Fourth Amendment. Lynch, though, did note the “seriousness” of the constitutional concerns over “the extent to which modern technology alters our traditional expectations of privacy.” ACLU lawyer Alex Abdo welcomed the decision.
“Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society,” he said. The case is American Civil Liberties Union et al v. Clapper et al, 2nd U.S. Circuit Court of Appeals, No. 14-42.