A panel of federal judges voiced significant concerns Tuesday about the privacy implications of NSA surveillance tactics during a wide-ranging hearing on a legal challenge brought by the ACLU.
In an oral argument that was set for less than 30 minutes and lasted nearly two hours, three judges on a panel hearing the case at the Second U.S. Circuit Court of Appeals in Manhattan probed claims by the ACLU that the federal government's collection of data relating to "every phone call made or received by residents of the United States" is illegal and unconstitutional.
The ACLU appeal challenged a lower court’s decision to uphold the NSA's mass bulk data collection of phone records.
Judges Gerard Lynch and Vernon Broderick were appointed by President Obama. Judge Robert Sack was appointed by President Clinton. At some point, each expressed significant concern about the privacy implications of allowing the federal government broad access to a wide range of information without any specific suspicion of wrongdoing.
Assistant Attorney General Stuart Delery first argued that federal courts do not have jurisdiction to review disputes regarding the NSA program. In addition, Delery argued the program is constitutional and has been repeatedly renewed by Congress.
Lynch asked how well briefed members of Congress were before voting, and questioned how much they understood about the program. At one point, Sack chimed in, "We don't know what we don't know"about NSA operations.
Lynch and Broderick both questioned why the government's justification for the bulk phone data collection program would not also extend to bank records, credit card transactions and other personal data. Lynch asked if the government's argument would not also entitle it to access "every American's everything."
Both sides acknowledged that President Obama has publicly stated that there are other ways to get the relevant intelligence, short of the sweeping NSA bulk data collection program that now exists.
That prompted Lynch to ask, if that was the case, why government attorneys were there to argue otherwise.
The panel also discussed the need for federal agencies such as the FBI and NSA to be able to move quickly when connecting dots on the intelligence landscape, acknowledging that having bulk data already at its disposal would speed the process.
There is no timeline for a decision from the Second Circuit Court of Appeals.The DC Circuit Court is set to hear arguments in a similar challenge on November 4.The timing makes it likely the Supreme Court will have a chance to wade into the dispute over the NSA bulk phone data collection in the next few months, if the Justices choose to take up an appeal from either the Second or DC Circuit Courts.