Homeland Security Watch

News and analysis of critical issues in homeland security

May 7, 2015

Section 215 does not authorize bulk collection

Filed under: Intelligence and Info-Sharing,Legal Issues — by Philip J. Palin on May 7, 2015

Earlier today the US Court of Appeals for the Second Circuit released a decision that Section 215 of the USA Patriot Act cannot be used as the legal basis for bulk collection of domestic calling records.  This would seem to put the entire program in legal jeopardy.  A copy of the decision is available here.

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Comment by Vicki Campbell

May 7, 2015 @ 6:08 pm

Very long overdue, but I’m not sure how much it will ultimately matter, in a country with an entire government (and seemingly no small segment of the general population) that seems to see itself fundamentally above the law, domestically and internationally.

Also, courtesy of Mr. Snowden, The Intercept revealed that the NSA has for some time been using speech-to-text technology that enables it to convert private phone conversations to searchable scripts, which it of course has been denying it does with all that data.

And Germany is apparently in the process of scaling back its intelligence sharing with the NSA, in the wake of its own internal spy scandal that revealed Germany had been colluding with the U.S.A to spy on heads of the French foreign ministry, the Elysee Palace, the European Commission, and European defense and aerospace firms, amongst others. So, we need to do this with my hard earned tax dollars why again? (and “everyone else does it” is not an answer…)

Finally, the U.S. will be appearing before the UN General Assembly this month to hear and answer criticisms of its human rights record, especially regarding its global surveillance activities, as part of its Universal Periodic Review (UPR). The UPR is a fairly new process (instituted in 2006 by the Gen. Assembly) used by the UN Human Rights Council as its major process in evaluating how well member states are upholding their signed human rights treaty obligations. It is “the world’s biggest stage for highlighting human rights abuses, as well as working for better human rights standards.” Of special interest to those of us who care about human rights, and especially their very regular abuse by the US, all UN member states are able to make recommendations for reform to the U.S. (and all other states under review), which then requires the U.S. to formally respond as to whether or not it accepts the positions and recommendations suggested. According to the Center for Democracy and Technology, with regard to U.S global surveillance conduct, human rights groups should be especially concerned about whether:

1) Countries with which the US has a positive relationship—particularly those that co-sponsored the recent groundbreaking resolution creating a new UN Special Rapporteur on the right to privacy—publicly remind the US government that many of the NSA surveillance programs revealed in the Snowden documents violate human rights and make recommendations as to how those programs should be changed;

2) Countries state that the US must comply with its human rights obligations when conducting surveillance outside its own borders—an assertion that would carry significant weight in a major ongoing legal debate;

3) Emphasis is placed upon the fact that even the initial interception or acquisition of private data interferes with the rights to privacy and free expression;

4) There is a significant embrace of the UN Office of the High Commissioner for Human Rights’ conclusion that any interferences with the right to privacy must be necessary and proportionate in order to comply with human rights (again, such statements by countries would help to strengthen a good global legal standard—one the US currently resists);

5) The burden surveillance places on free expression is explicitly highlighted; and

6) Countries address specific human rights issues such as meaningful oversight of surveillance programs (for example, by courts or independent bodies) and the need to ensure that anyone who experiences a violation of his/her rights due to surveillance has access to an effective remedy.

Comment by William R. Cumming

May 8, 2015 @ 6:36 am

Vicki! Thanks for this excellent comment. The surveillance decision leaves open Congressional approval and not decided on Constitutional grounds.

Comment by Max Geron

May 14, 2015 @ 8:06 am

It didn’t take long for the fear mongering and security theater advocates to hit the Sunday news talk shows repeating their haggard, “Trade your freedoms for security. We need more of everyone’s data to protect you.”

And some who say we don’t collect enough on our citizens:


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