The Corner

Congress and the NSA

The Second Circuit Court of Appeals ruled yesterday that section 215 of the Patriot Act did not authorize the National Security Administration to collect telephony metadata in bulk. Julian Sanchez points out that the ruling strengthens the case for passing a bill to reform that section of the Patriot Act rather than to simply re-authorize it unamended:

Senate Majority Leader Mitch McConnell has stubbornly pressed ahead with a bill to reauthorize §215 without any changes.  But the Second Circuit ruling gives even defenders of the NSA program powerful reasons to support reform. . . .

The [USA] Freedom Act would, in line with the Second Circuit opinion, bar the use of §215 and related authorities to indiscriminately collect records in bulk, requiring that a “specific selection term,” like a phone number, be used to identify the records sought by the government.  It also, however, creates a separate streamlined process that would allow call records databases already retained by telephone companies to be rapidly searched and cross-referenced, allowing NSA to more quickly obtain the specific information it seeks about terror suspects and their associates without placing everyone’s phone records in the government’s hands.  If the Second Circuit’s ruling is upheld, NSA will likely have to cease bulk collection even if Congress does reauthorize §215.  That makes passage of the Freedom Act the best way to guarantee preservation of the rapid search capability McConnell seems to think is so important—though, of course, the government will retain the ability to obtain specific phone records (albeit less quickly) under either scenario.  With this ruling, in short, the arguments against reform have gone from feeble to completely unsustainable.

The plain text of the Patriot Act has always seemed to me to militate in favor of the Second Circuit’s position: that it does not authorize what the NSA has been doing. This is also the view of the congressman who introduced the Patriot Act in the House.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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