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Sunday, March 3, 2024 | Back issues
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Second Circuit Won’t Disturb NSA Spying Transition

MANHATTAN (CN) - The National Security Agency can keep vacuuming up the metadata of millions of U.S. citizens who are not suspected of a crime until forced to transition to a new regime on Nov. 29, the Second Circuit ruled Thursday.

Coming into effect in exactly one month, the USA Freedom Act forces the government to change its methods of surveillance by keeping phone data in the custody of the private telecommunications companies instead of the NSA.

The passage of the law followed the Second Circuit's ruling that the government's program was illegal because its justification for it - section 215 of the Patriot Act - did not allow it.

The American Civil Liberties Union told the appellate court that it did not go far enough, because it declined to ban the NSA's program before giving Congress a chance to clarify the law.

Congress' answer, however, left some uncertainty by allowing the NSA to have a 180-day transition period before the USA Freedom Act came into effect.

Writing for a unanimous three-judge panel today, Judge Gerard Lynch refused to disturb that path going forward.

The 25-page opinion charts the controversy surrounding the program after a former NSA contractor's leak brought it to light.

"Attention to the issue of bulk surveillance of American citizens by the government has sharply increased among the American public, the courts, and the legislature since Edward Snowden began his highly publicized disclosures of confidential information about the program in 2013," Lynch wrote.

Tracing its history earlier, the opinion notes that the Foreign Intelligence Surveillance Act of 1978 created the secret spy court that first permitted mass surveillance.

The Guardian's initial publication of this court's top-secret order sparked massive outcry that propelled the passage of the USA Freedom Act.

For the appellate court, the language of the law left no doubt that a window period applied before the NSA made an "orderly transition.

"We agree with the government that Congress reached a compromise, supported by the president: to end the telephone metadata program, but to allow for a 180-day transition period," the opinion states.

The ACLU's attorney Alex Abdo pointed to the group's prior victory as a cause of celebration.

"While we disagree with the appeals court's decision, its earlier ruling and the passage of the USA Freedom Act mean that bulk collection of Americans' call records will end in just a few weeks," Abdo said in a statement. "All Americans should celebrate that fact."

The case will now return to U.S. District Judge William Pauley, who must decide whether the government's actions were unconstitutional.

He is unlikely to rule in the ACLU's favor, however, as he defended the NSA's methods two years ago in a ruling calling its surveillance as a tool against what he called the "bold jujitsu" of international terrorism.

The Second Circuit overruled his judgment in denouncing the program as unlawful.

For now, Pauley will preside over what to the NSA must do with the data it scooped, Abdo noted.

"It will now be up to the district court to address to what extent the government must purge the call records it collected unlawfully," he said. "In the meantime, the government still needs to rein in other overreaching NSA spying programs."

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