Sergey Nivens - Fotolia
The American Civil Liberties Union (ACLU) will challenge a ruling to allow intelligence agencies to resume bulk collection of phone data.
The controversial practice – exposed by whistle-blower Edward Snowden in June 2013 – was halted when section 215 of the US Patriot Act, which had been used to authorise the NSA’s data-collection activities, expired in May 2015.
The US Foreign Intelligence Surveillance Court ruled on 29 June 2015 that the National Security Agency (NSA) phone data collection programme can resume under provisions in the US Freedom Act, passed within days of the expiry of section 215 of the Patriot Act.
The ACLU has announced plans to ask the US Court of Appeals – which had ruled that the phone surveillance programme was illegal – to issue an injunction to halt the programme, according to the New York Times.
But according to the surveillance court’s presiding judge, the ruling is consistent with Congress's plan to reduce the NSA's bulk phone data collection practices by reaffirming its end in November 2015, in line with the Freedom Act’s six-month limit on the provision.
"In passing the USA Freedom Act, Congress clearly intended to end bulk data collection of business records and other tangible things. But what it took away with one hand, it gave back – for a limited time – with the other,” judge Michael Mosman said in his ruling.
Phone records with telecoms firms
The 180-day extension is aimed at giving US intelligence agencies time to move to a new system, in which the phone records will stay in the hands of the phone companies, but will still allow intelligence agencies access to the records to analyse links with suspected terrorists.
But the ACLU is expected to argue that the Freedom Act neither contradicts the Appeal Court’s ruling that bulk phone data collection is illegal, nor specifically authorises bulk collection for the six-month transition.
Libertarian advocacy group, FreedomWorks, has also challenged the surveillance court’s authority to allow the bulk collection of phone data in the interim period.
However, judge Mosman rejected the challenge by FreedomWorks in his ruling, and said the Appeals Court ruling are not binding on the surveillance court. “This court respectfully disagrees with that court’s analysis, especially in view of the intervening enactment of the USA Freedom Act,” he wrote.
Read more about surveillance
- Critics say reforms contained in the US Freedom bill do not go far enough to achieve significant surveillance reform.
- The rapporteur for the European parliament’s inquiry on electronic mass surveillance of EU citizens has called for stronger democratic oversight of intelligence activities.
- Mass surveillance of UK citizens' internet communications by the UK intelligence services was unlawful until the end of last year, according to Britain’s top security court.
In response to the ruling, ACLU lawyer Jameel Jaffer said: “Neither the statute nor the Constitution permits the government to subject millions of innocent people to this kind of intrusive surveillance.” Jaffer said the ACLU will ask the court to prohibit the surveillance and order the NSA to purge the records it has already collected.
UK Anderson Review
In June 2015, an independent report on the UK’s proposed Investigatory Powers Bill said legislation that seeks to increase the surveillance powers of the police and intelligence services must include verification, clear limits and safeguards.
The review, by David Anderson QC, said each intrusive power must be shown to be necessary, clearly spelled out in law, limited in accordance with international human rights standards and subject to demanding and visible safeguards.
The government, IT industry trade body TechUK and civil liberties group Big Brother Watch welcomed the report – although the latter called for wider debate.
Renate Samson, CEO of civil liberties group Big Brother Watch, said the organisation hopes the report will be the start of a long-overdue and much-needed parliamentary and public debate.
She also called for the creation of a joint committee to analyse existing legislation and Anderson’s report.
Read more on Privacy and data protection
GCHQ bulk interception programme breached privacy rights, Strasbourg court rules
EU’s top court questions legality of UK phone and internet data surveillance
European court to decide on legality of bulk phone and internet surveillance
Facebook loses bid to halt European court decision on EU-US data sharing