Analysis: Edward Snowden & The Patriot Act’s Section 215

Edward Snowden’s courageous acts of whistleblowing have been vindicated again — this time by the United States Second Circuit Federal Court of Appeals.

In Thursday’s long-anticipated and unanimous ruling, Circuit Judges Robert D. Sack and Gerard E. Lynch, along with District Judge Vernon S. Broderick of the United States Court for the Southern District of New York found that the “bulk collection of telephony metadata” exposed by Snowden cannot be justified by the existing provisions of Section 215 of the USA PATRIOT Act.

In the 97-page ruling, the Appellate Court affirms an earlier December 2013 District Court ruling that the appellants (the American Civil Liberties Union) have standing to sue the government and strongly denies the US Government’s claims of preclusion, secrecy and statutory considerations invalidating the appellants suit, stating in summary (2c): “In short, the government relies on bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence in an effort to find an implied revocation of the APA’s authorization of challenges to government actions.” (Page 52 of the judgement, Case 14-42 ACLU v Clapper)

On Page 94 of the finding, the judges state, “The District Court erred in certain respects on several issues of law critical to deciding the legality of the government’s program. On a correct view of those issues, appellants have shown a likelihood — indeed a certainty — of success on the merits of at least their statutory claims.”

While affirming the earlier District Court decision not to order a preliminary injunction (which would halt the domestic program in question) the Court does so in order to give Congress the opportunity to decide, “whether and under what conditions it should continue is a lesser intrusion on appellants’ privacy than they faced at the time this litigation began.” (Page 95)

The judgement also speaks to the severity of the privacy issues inherent within the collection of telephony meta-data — something that Edward Snowden has repeatedly discussed in interviews and speeches about bulk collection — with the Court writing: “The more metadata the government collects and analyzes … the greater the capacity for such metadata to reveal ever more private and previously unascertainable information about individuals … in today’s technologically based world, it is virtually impossible for an ordinary citizen to avoid creating metadata about himself on a regular basis simply by conducting his ordinary affairs.” (Page 10)

It appears the collection has been conducted over a much longer period than the average citizen may realise. The Court states: “It is now undisputed that the government has been collecting telephone metadata in bulk under S215 since at least May 2006” (Page 14) — this of course being some seven years prior to Edward Snowden’s first disclosures.

The potential illegality of the program appears to have escaped the notice of the now-infamous “secret” Foreign Intelligence Surveillance Court (FISC). Page 15 points out: “The government has disclosed additional FISC orders reauthorizing the program. FISC orders must be renewed every 90 days, and the program has therefore been renewed 41 times since May 2006.”

And on Page 16: “The government disputes appellants’ characterization of the program as collecting ‘virtually all telephony metadata’ associated with calls made or received in the United States, but declines to elaborate on the scope of the program or specify how the program falls short of that description. It is unclear, however, in what way appellants’ characterization of the program can be faulted.”

Widely having been referenced by intelligence agencies to justify their mass surveillance of domestic communications, Section 215 has been the subject of a recent online campaign attempting to rescind it, with supporters able to call their elected representatives through the campaign website and urged to make statements such as:

I’m one of your constituents, and I’m calling to urge you to end the NSA’s unconstitutional mass surveillance under the Patriot Act and vote no on S. 1035, a bill that would extend expiring portions of the Patriot Act until 2020. NSA surveillance illegally invades my privacy, along with millions of other innocent people, without making me safer. — from “Fight 215: Stop The Patriot Act’s Mass Surveillance”

Backed by a number of privacy and technology organisations, including the Electronic Frontier Foundation (EFF), American Civil Liberties Union (ACLU), Government Accountability Project (GAP), Freedom of the Press Foundation and Sunlight Foundation, the campaign has garnered significant attention and bipartisan support.

With efforts such as the Fight215 Coalition alongside this Court of Appeals finding, and the moves by huge technology companies to embrace end-to-end encryption in efforts to at least superficially protect the privacy of their users, Snowden’s disclosures appear more critical than ever to the public interest of American citizens.

As Snowden continues to be lauded internationally for his sacrifice, these recent legal developments may herald the turning of public opinion in America and even within the intelligence services themselves, where he surely deserves to be hailed as a hero and a true patriot, rather than branded traitor.

It’s clearer than ever that Edward Snowden is owed all our gratitude for refusing to obey illegal orders, an act that demonstrates courage and personal integrity of the highest magnitude.

Content posted to MyMPN open blogs is the opinion of the author alone, and should not be attributed to MintPress News.