U.S. Senate and Biden Administration Shamefully Renew and Expand FISA Section 702, Ushering in a Two Year Expansion of Unconstitutional Mass Surveillance

One week after it was passed by the U.S. House of Representatives, the Senate has passed what Senator Ron Wyden has called, “one of the most dramatic and terrifying expansions of government surveillance authority in history.” President Biden then rushed to sign it into law.  

The perhaps ironically named “Reforming Intelligence and Security America Act (RISAA)” does everything BUT reform Section 702 of the Foreign Intelligence Surveillance Act (FISA). RISAA not only reauthorizes this mass surveillance program, it greatly expands the government’s authority by allowing it to compel a much larger group of people and providers into assisting with this surveillance. The bill’s only significant “compromise” is a limited, two-year extension of this mass surveillance. But overall, RISAA is a travesty for Americans who deserve basic constitutional rights and privacy whether they are communicating with people and services inside or outside of the US.

Section 702 allows the government to conduct surveillance of foreigners abroad from inside the United States. It operates, in part, through the cooperation of large telecommunications service providers: massive amounts of traffic on the Internet backbone are accessed and those communications on the government’s secret list are copied. And that’s just one part of the massive, expensive program. 

While Section 702 prohibits the NSA and FBI from intentionally targeting Americans with this mass surveillance, these agencies routinely acquire a huge amount of innocent Americans’ communications “incidentally.” The government can then conduct backdoor, warrantless searches of these “incidentally collected” communications.

The government cannot even follow the very lenient rules about what it does with the massive amount of information it gathers under Section 702, repeatedly abusing this authority by searching its databases for Americans’ communications. In 2021 alone, the FBI reported conducting up to 3.4 million warrantless searches of Section 702 data using Americans’ identifiers. Given this history of abuse, it is difficult to understand how Congress could decide to expand the government’s power under Section 702 rather than rein it in.

One of RISAA’s most egregious expansions is its large but ill-defined increase of the range of entities that have to turn over information to the NSA and FBI. This provision allegedly “responds” to a 2023 decision by the FISC Court of Review, which rejected the government’s argument that an unknown company was subject to Section 702 for some circumstances. While the New York Times reports that the unknown company from this FISC opinion was a data center, this new provision is written so expansively that it potentially reaches any person or company with “access” to “equipment” on which electronic communications travel or are stored, regardless of whether they are a direct provider. This could potentially include landlords, maintenance people, and many others who routinely have access to your communications on the interconnected internet.

This is to say nothing of RISAA’s other substantial expansions. RISAA changes FISA’s definition of “foreign intelligence” to include “counternarcotics”: this will allow the government to use FISA to collect information relating to not only the “international production, distribution, or financing of illicit synthetic drugs, opioids, cocaine, or other drugs driving overdose deaths,” but also to any of their precursors. While surveillance under FISA has (contrary to what most Americans believe) never been limited exclusively to terrorism and counterespionage, RISAA’s expansion of FISA to ordinary crime is unacceptable.

RISAA also allows the government to use Section 702 to vet immigrants and those seeking asylum. According to a FISC opinion released in 2023, the FISC repeatedly denied government attempts to obtain some version of this authority, before finally approving it for the first time in 2023. By formally lowering Section 702’s protections for immigrants and asylum seekers, RISAA exacerbates the risk that government officials could discriminate against members of these populations on the basis of their sexuality, gender identity, religion, or political beliefs.

Faced with massive pushback from EFF and other civil liberties advocates, some members of Congress, like Senator Ron Wyden, raised the alarm. We were able to squeeze out a couple of small concessions. One was a shorter reauthorization period for Section 702, meaning that the law will be up for review in just two more years. Also, in a letter to Congress, the Department of Justice claimed it would only interpret the new provision to apply to the type of unidentified businesses at issue in the 2023 FISC opinion. But a pinky promise from the current Department of Justice is not enforceable and easily disregarded by a future administration. There is some possible hope here, because Senator Mark Warner promised to return to the provision in a later defense authorization bill, but this whole debacle just demonstrates how Congress gives the NSA and FBI nearly free rein when it comes to protecting Americans – any limitation that actually protects us (and here the FISA Court actually did some protecting) is just swept away.

RISAA’s passage is a shocking reversal—EFF and our allies had worked hard to put together a coalition aimed at enacting a warrant requirement for Americans and some other critical reforms, but the NSA, FBI and their apologists just rolled Congress with scary-sounding (and incorrect) stories that a lapse in the spying was imminent. It was a clear dereliction of Congress’s duty to oversee the intelligence community in order to protect all of the rest of us from its long history of abuse.

After over 20 years of doing it, we know that rolling back any surveillance authority, especially one as deeply entrenched as Section 702, is an uphill fight. But we aren’t going anywhere. We had more Congressional support this time than we’ve had in the past, and we’ll be working to build that over the next two years.

Too many members of Congress (and the Administrations of both parties) don’t see any downside to violating your privacy and your constitutional rights in the name of national security. That needs to change.

U.S. Senate and Biden Administration Shamefully Renew and Expand FISA Section 702, Ushering in a Two Year Expansion of Unconstitutional Mass Surveillance

NSA Internet Surveillance Under Section 702 Violates the First Amendment

The First Amendment is too often overlooked in discussions of the National Security Agency’s vast surveillance authorities. But as Congress considers whether to reauthorize Section 702 of FISA this winter, we must remember that it’s not just our Fourth Amendment rights to privacy that are in the crosshairs, but also our First Amendment rights. These rights to anonymously speak, associate, access information, and engage in political activism are the bedrock of our democracy, and they’re endangered by the NSA’s pervasive surveillance.

The NSA uses Section 702 to justify ongoing programs to siphon off copies of vast amounts of our communications directly from the Internet backbone as well as require system-wide searches across the information collected by major Internet companies like Google, Facebook, and Apple.

So how does the First Amendment come to apply to mass surveillance? To understand this, we need to begin with a little history of the civil rights movement.

As part of the backlash to the Supreme Court’s ruling striking down segregation in schools, the Attorney General of Alabama, John Patterson, brought a lawsuit against a leading civil rights organization, the National Association for the Advancement of Colored People (NAACP). The lawsuit alleged that the NAACP violated a state law requiring “foreign corporations” to file certain paperwork and get approval before practicing business in Alabama. The NAACP is a nonprofit membership organization; it didn’t file the paperwork because it believed it was exempt. While the NAACP fought the suit, the state issued a subpoena demanding detailed records from the NAACP, including membership lists and bank records. The NAACP refused to surrender its membership lists, fearing retaliatory consequences for its members. Because of this refusal, the court fined the NAACP $10,000, which after five days was raised to $100,000. The NAACP continued to fight the order for two years until the Supreme Court took up the issue, never surrendering its membership lists.

Ultimately the NAACP was vindicated. The Supreme Court recognized that the First Amendment protected the associational privacy interests of NAACP members. It directly recognized that freely associating for advocacy or other purposes is a fundamental right. It noted that state invasions of privacy could infringe on that right: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech… Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”

The Supreme Court found that the “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

In short, we all have the right to engage in associate with one another and to join and communicate with political and religious groups free from government surveillance.

As our society has moved online, our associations have become digital in nature. Signing up for a membership or learning about an advocacy group often happens over a website or app. Members of modern political groups coordinate donations, activities, and information over social networks, email, and websites. When the NSA—either by itself or by working with corporate “partners”—collects the digital communications and browsing history of countless individuals, it’s also obtaining records of innocent Americans visiting activism websites, becoming members of advocacy groups, and coordinating social movements. EFF also raised this argument in our case against the mass telephone records collection by the NSA (substantially narrowed in 2015) First Unitarian Church of Los Angeles v NSA.

The surveillance of our communications systems, and thereby the surveillance of our communications, infringes on the very rights of private association upheld by the Supreme Court in 1958.

So while the Fourth Amendment concerns about 702 and mass surveillance are important, they are not the only problem created by the law. And as Alex Abdo, an attorney at the Knight First Amendment Institute at Columbia University, argues that when it comes to confronting government surveillance, we shouldn’t expect the Fourth Amendment alone to protect our First Amendment interests. He recently wrote that “The Fourth Amendment, unlike the First, is blind to the cumulative effects of invasions of privacy that are small in isolation but substantial in combination.”

Those cumulative effects are especially felt when it comes to the right to publish and access information freely. While the government may be forbidden from censoring online speakers and readers, the cumulative impact of pervasive digital surveillance has a chilling effect on online communities. The specter of government surveillance quells engagement in online forums, social networks, and blogs that discuss controversial, political, or unpopular positions. Knowing that the government is keeping a digital dossier of comments we leave online and articles we digitally share creates an environment in which speakers hesitate to engage in online political advocacy.

Readers also hesitate to visit websites that may be seen as out of favor with the government, whether that’s Al Jazeera or CNN or EFF’s own site, knowing that their visit may be recorded in a government database for years to come.

The NSA’s digital surveillance of countless law-abiding Americans also indirectly affects another key First Amendment right: our right to assembly. Today’s modern protest movements are often organized and fueled by social media and digital communication, where activists coordinate across a wide range of physical locations. The NSA’s pervasive digital surveillance challenges our values as a society that respects and safeguards the right to plan and participate in protests and other political activity, rights which are themselves baked into the First Amendment.

The pervasive digital surveillance programs of the NSA chip away at the First Amendment protections that underpin our democracy. As Congress considers whether to reauthorize or reform Section 702 surveillance in the coming weeks, we urge them to remember that their choice will not just impact the privacy of Americans, it will have a profound impact on freedom of speech, association, and assembly protected by the First Amendment and ultimately, upon our democracy itself.

Contact Congress today to speak out against NSA surveillance.

Source: NSA Internet Surveillance Under Section 702 Violates the First Amendment | Electronic Frontier Foundation

National Security Agencies Are Evading Congressional Oversight

Last week, federal officials from several spy agencies engaged in a full court press in Washington, spinning facts before media outlets, flooding Capitol Hill with lobbyists, and bringing lawmakers to the National Security Agency's (NSA) Ft. Meade headquarters to feed them selective information about their unconstitutional mass surveillance activities. Predictably omitted from these conversations are the many Americans from across the political spectrum who have raised concerns, ranging from constitutional and commercial to security-related, that have rightfully dogged federal mass surveillance efforts since their revelations—not in official proceedings, but rather by whistleblowers—in 2005 and 2013.

Rather than embrace bipartisan calls for long overdue and constitutionally necessary limits, executive officials have instead chosen to shoot the proverbial messengers, vilifyingwhistleblowers and building new programs to prevent others from ever coming forward. Last week’s meetings included claims that particular examples of mass surveillance proved useful, ignoring its repeated failures. While the appearance of security may be comforting to some, NSA veterans have identified discarded programs that, relative to their replacements, reportedly did a better job of protecting national security while also protecting the privacy of Americans by encrypting data collected within the U.S. and requiring a warrant for investigators to access it.

Meanwhile, too many members of Congress from each of the major parties remain excessively deferential to the intelligence community, despite Congress mustering a bipartisan majority to enact preliminary reforms in 2013 and the House approving even more sweeping changes in their wake. Even though the scheduled expiration of a key statute—Section 702 of the Foreign Intelligence Surveillance Act (FISA)—looms mere months away, congressional committees have yet to hold hearings to get beyond executive talking points and begin actively investigating the underlying facts.

Originally enacted in the 1970s to restrain domestic surveillance, the history of the FISA statute is revealing in itself. Its genesis was a wide-ranging congressional investigation that dramatically uncovered a series of previously secret programs that, instead of promoting security, were carefully tailored to undermine constitutionally protected dissent. Alarmed at wide-ranging executive abuses behind a wall of secrecy, Congress enacted reforms that included the creation of a secret court, and insisted on regulations by the Department of Justice to further curtail the FBI's 40-year assault on democracy in the form of COINTELPRO: its infamous Counterintelligence Programs.

Since then, the Justice Department regulations have been watered down periodically, while FISA was ultimately flipped on its head. Most recently, FISA was amended in 2009 to legalize a series of mass surveillance programs begun under the Bush administration in direct violation of the governing statue at the time, as well as constitutional limits. The continuation of these programs under the Obama administration granted them the appearance of bipartisan legitimacy despite their clear and continuing unconstitutionality.

In the past, concerns about mass surveillance have extended across the political spectrumand around the world. Under the Trump administration, those concerns have grown increasingly pressing, given the president's seeming disregard for constitutional limits on executive power, and potential willingness to politicize surveillance to serve his own political ends.

Given those concerns, and the crucial congressional role of checking and balancing the federal executive branch, Congress should aggressively exercise its oversight responsibilities. But there are structural barriers to doing so. Many members of Congress on key congressional committees, for instance, lack qualified staff wielding adequate security clearance to rebut talking points peddled by self-serving executive officials.

Beyond structural impediments, many members of Congress have been willing to settle for mere assurances from executive officials, rather than insist upon reviewing evidence proving that mass surveillance effectively protects security, and that the government’s systems adequately protect the rights of innocent Americans. Representatives poised to do more include Democrats and Republicans whose constituents may enjoy opportunities to politically force their hands.

Only by investigating mass surveillance operations can Congress uncover the underlying facts. Such an investigation would be crucial in helping establish the need for long overdue constitutional limits.

In particular, because agencies including the NSA and FBI have relied on legal loopholes and secret interpretations for which they have grown notorious, one crucial requirement is for backdoor searches of Americans to be first justified by a judicial warrant. While that process does not impose a significant operational burden on agencies, it does prevent the kinds of documented abuses that agency employees and contractors have already committed, which include stalking former lovers using the government's powerful spying tools.

Congress should also ensure that intelligence information is used exclusively to protect national security, instead of polluting the criminal legal system with raw intelligence that inherently fails to meet the standards required for evidence to be admitted in court. Congress should not allow powerful military-grade surveillance programs to be used for purposes like routine criminal law enforcement or tracking down undocumented immigrants.

Congressional oversight of the intelligence agencies should also address issues beyond data collection. In the past, intelligence agencies have undermined attempts by Americans to ensure their own privacy, including by intercepting router shipments and planting covert firmware. Accordingly, Congress must adopt measures to protect encryption and encryption standards from erosion by national security agencies. A restriction along these lines would also serve business interests, which have vocally decried losses amounting to billions of dollars driven by clients making the rational decision to buy encryption devices from other sources.

Finally, Congress must restore the opportunity for a robust public debate about these issues. That requires reforming the state secrets privilege and fixing the broken classificationsystem described as “dysfunctional” by the former official who administered it. All too often, overclassification keeps policymakers and the public in the dark, and enables a bipartisan war on whistleblowers from whom congressional committees have learned the truth.

Regardless of what Congress does this fall, advocates will continue to challenge the constitutionality of mass surveillance in the courts, where we have sought for over a decade to invoke the rule of law to restore limits on executive authority. Congress is currently considering surveillance policy, and we urge Congress to legislate limits to safeguard constitutional rights. If enough policymakers are pressed by informed and alarmed constituents, Congress will hopefully finish the job it already started.

Source: National Security Agencies Are Evading Congressional Oversight

NSA Reneges on Promise to Tell Congress How Many Innocent Americans it Spies On

Lawmakers should know how the laws they pass impact their constituents. That’s especially true when the law would reauthorize a vast Internet and telephone spying program that collects information about millions of law-abiding Americans.

But that’s exactly what the Intelligence Community wants Congress to do when it considers reauthorizing a sweeping electronic surveillance authority under the expiring Section 702, as enacted by the FISA Amendments Act, before the end of the year.

Intelligence officials have been promising Congress they would provide lawmakers with an estimate of the number of American communications that are collected under Section 702. That estimate is a critical piece of information for lawmakers to have as they consider whether and how to reauthorize and reform the warrantless Internet surveillance of millions of innocent Americans in the coming months.

But during a hearing on Section 702 in front of the Senate Intelligence Committee yesterday, Director of National Intelligence Dan Coats, despite previous assurances, said he won’t be providing that estimate out of national security and, ironically, privacy concerns.

He told lawmakers it is “infeasible to generate an exact, accurate, meaningful, and responsive methodology that can count how often a U.S. person’s communications may be incidentally collected under Section 702.” To do so would require diverting NSA analysts’ attention away from their current work to “conduct additional significant research” to determine whether the communications collected under Section 702 are American. “I would be asking trained NSA analysts to conduct intense identity verification research on potential U.S. persons who are not targets of an investigation,” he said. “From a privacy and civil liberties perspective, I find this unpalatable.”

From a privacy and civil liberties perspective, we find it unpalatable that the Intelligence Community would ask Congress to reauthorize a controversial surveillance program without first following through on the promise—reiterated by Coats as recently as earlier this year—to provide some much needed information about how the program impacts Americans. To do so supposedly in the name of privacy concerns is even worse.

It should go without saying: if the Intelligence Community is truly worried about the privacy and civil liberties of ordinary Americans, officials will take the looming Section 702 sunset as an opportunity to give lawmakers the information they need to have an informed and meaningful debate about how government spying programs impact Americans’ privacy.

Privacy advocate Sen. Ron Wyden criticized DNI Coats for his backtracking, calling his reversal a “very, very damaging position to stake out.” He warned, “We’re going to battle it out in the course of this, because there are a lot of Americans that share our view that security and liberty are not mutually exclusive.”

And that battle is already happening. With Congress’ debate over Section 702 reauthorization heating up, now is the time to tell your representatives in Congress to let this warrantless spying authority lapse.

Source: NSA Reneges on Promise to Tell Congress How Many Innocent Americans it Spies On | Electronic Frontier Foundation

Culpability for this Ransomware Belongs to the NSA

Culpability for this Ransomware Belongs to the NSA

In all the coverage of the recent ransomware attack shutting down computer systems around the world, one point has been buried and obscured. The focus has been on precisely who spread this horrid thing, what damage it has done, what to do once you have it, and how to prevent it.

All fascinating questions. But an equally, if not more, important question is: who created this weapon of mass computer destruction? What was its origin? How did it get released in the first place?

And here, the answer is as sure as it is alarming. The culpability belongs to the National Security Agency. That’s right. The government that claims to be protecting us against cybercrime both made the virus and failed to secure it from being stolen by malicious actors.

ComputerWorld explains

The tools, which security researchers suspect came from the NSA, include an exploit codenamed EternalBlue that makes hijacking older Windows systems easy. It specifically targets the Server Message Block (SMB) protocol in Windows, which is used for file-sharing purposes…. The developer of Wanna Decryptor appears to have added the suspected NSA hacking tools to the ransomware’s code, said Matthew Hickey, the director of security provider Hacker House, in an email.

ArsTechnica explains:

A highly virulent new strain of self-replicating ransomware shut down computers all over the world, in part by appropriating a National Security Agency exploit that was publicly released last month by the mysterious group calling itself Shadow Brokers…. Another cause for concern: wcry copies a weapons-grade exploit codenamed Eternalblue that the NSA used for years to remotely commandeer computers running Microsoft Windows. Eternalblue, which works reliably against computers running Microsoft Windows XP through Windows Server 2012, was one of several potent exploits published in the most recent Shadow Brokers release in mid-April.

The New York Times says:

The attacks on Friday appeared to be the first time a cyberweapon developed by the N.S.A., funded by American taxpayers and stolen by an adversary had been unleashed by cybercriminals against patients, hospitals, businesses, governments and ordinary citizens…. The United States has never confirmed that the tools posted by the Shadow Brokers belonged to the N.S.A. or other intelligence agencies, but former intelligence officials have said that the tools appeared to come from the N.S.A.’s “Tailored Access Operations” unit, which infiltrates foreign computer networks. (The unit has since been renamed.)

The furious president of Microsoft weighed in:

Starting first in the United Kingdom and Spain, the malicious “WannaCrypt” software quickly spread globally, blocking customers from their data unless they paid a ransom using Bitcoin. The WannaCrypt exploits used in the attack were drawn from the exploits stolen from the National Security Agency, or NSA, in the United States…. The governments of the world should treat this attack as a wake-up call. They need to take a different approach and adhere in cyberspace to the same rules applied to weapons in the physical world. We need governments to consider the damage to civilians that comes from hoarding these vulnerabilities and the use of these exploits. This is one reason we called in February for a new “Digital Geneva Convention” to govern these issues, including a new requirement for governments to report vulnerabilities to vendors, rather than stockpile, sell, or exploit them.

Cyberscoop interviewed several experts:

“In my view, there isn’t a policy problem, it’s an operational problem,” [former White House National Security Council cyber staffer Rob] Knake, now with the Council on Foreign Relations, told CyberScoop. “NSA should not have lost those tools. No way for policymakers to account for that problem other than to move quickly to get info on the vulnerabilities out, which they apparently did. Loss of the tools is an operational problem. The response was appropriate and timely.”

This is obviously terrible for the United States in terms of international relations. It is the equivalent of having built a weapon of mass destruction and inadvertently failing to secure it from access by criminals. Yes, the people who use such weapons are bad actors, but the bureaucracy that made the weapon and allowed its release in the first place bears primary responsibility.

And while the NSA’s responsibility is certainly being downplayed in the American mainstream media – NPR reported it but quietly and inauspiciously – you can bet it is all the talk in the 100 countries that are affected.

Yes, it would be very sweet if users around the world were forgiving and understanding. Everyone makes mistakes. Sadly, that is not the case. The NSA developed this virus to use against network systems of enemy countries and failed to secure it. The head of Microsoft is correct that this really is an outrage, and cries out for a fix.

Had a private company been responsible, its stock would now sit at nearly zero and the feds would be all over it for responsibility for cybercrime. Probably there would be jail time.

What will be the fallout from the NSA screw up? Watch for it: surely a bigger budget.


Jeffrey A. Tucker


Jeffrey Tucker is Director of Content for the Foundation for Economic Education. He is also Chief Liberty Officer and founder of Liberty.me, Distinguished Honorary Member of Mises Brazil, research fellow at the Acton Institute, policy adviser of the Heartland Institute, founder of the CryptoCurrency Conference, member of the editorial board of the Molinari Review, an advisor to the blockchain application builder Factom, and author of five books. He has written 150 introductions to books and many thousands of articles appearing in the scholarly and popular press.

This article was originally published on FEE.org. Read the original article.

NSA Will Spy for Local Cops Under New Obama Administration Rules

NSA Will Spy for Local Cops Under New Obama Administration Rules


New rules under development by the Obama administration will make it even easier for federal agencies like the FBI and DEA to access troves of phone calls, emails and location data collected by the NSA on millions of people, including Americans, and pass it on to local cops for everyday investigations, or basically any other purpose that suits them.Proponents of federal spying inevitably defend any objection to mass warrantless surveillance by playing the terrorism card.The NSA must be able to sweep up virtually everybody’s electronic data to protect America from terrorist attacks, so the argument goes. This carries a great deal of weight, especially in the wake of tragic bombings in Paris and Brussels. Many Americans brush off the constitutional violations and invasion of privacy inherent in NSA spy programs because they honestly believe they only target terrorists.But in fact, the vast majority of information dredged up by the U.S. spy apparatus ends up in the hands of state and local law enforcement for use in routine criminal investigations. Instead of “fighting terrorism,” the American surveillance state primarily serves as a way to circumvent the Fourth Amendment and prosecute the unconstitutional “War on Drugs.”We’ve known for several years that a DEA Special Operations Division utilizes warrantless data collected by the NSA for routine drug investigations. Reuters revealed the extent of NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through the SOD. These cases “rarely involve national security issues.”

Former NSA technical director William Binney said the feds share information gathered without a warrant and direct the local police force to make an arrest. Using a process known as “parallel construction,” investigators then build their case using normal policing techniques, getting warrants for information they’ve already obtained. The process serves to hide the illegally gathered information, creating the illusion of a legitimate case.

As Washington Post columnist Radley Balko put it, parallel construction is “a bureaucratically sterilized way of saying big stinking lie.”

Binney called this “the most threatening situation to our constitutional republic since the Civil War.”

A new policy quietly under development by the Obama administration will make it even easier for the NSA to share this information with no privacy screening. According to a New York Times report, “Robert S. Litt, the general counsel in the office of the Director of National Intelligence, said that the administration had developed and was fine-tuning what is now a 21-page draft set of procedures to permit the sharing.”

Under the proposed rule changes, federal agencies such as the FBI would gain direct access to streams of information gathered by the NSA, including emails, phone calls and location data. They would then be free to pass along this information to state and local law enforcement.

All of this can happen without any congressional or judicial oversight under a Reagan era executive order known as EO 12333.

Surprise! NSA data will soon routinely be used for domestic policing that has nothing to do with terrorism

Surprise! NSA data will soon routinely be used for domestic policing that has nothing to do with terrorism


A while back, we noted a report showing that the “sneak-and-peek” provision of the Patriot Act that was alleged to be used only in national security and terrorism investigations has overwhelmingly been used in narcotics cases. Now the New York Times reports that National Security Agency data will be shared with other intelligence agencies like the FBI without first applying any screens for privacy. The ACLU of Massachusetts blog Privacy SOS explains why this is important:

What does this rule change mean for you? In short, domestic law enforcement officials now have access to huge troves of American communications, obtained without warrants, that they can use to put people in cages. FBI agents don’t need to have any “national security” related reason to plug your name, email address, phone number, or other “selector” into the NSA’s gargantuan data trove. They can simply poke around in your private information in the course of totally routine investigations. And if they find something that suggests, say, involvement in illegal drug activity, they can send that information to local or state police. That means information the NSA collects for purposes of so-called “national security” will be used by police to lock up ordinary Americans for routine crimes. And we don’t have to guess who’s going to suffer this unconstitutional indignity the most brutally. It’ll be Black, Brown, poor, immigrant, Muslim, and dissident Americans: the same people who are always targeted by law enforcement for extra “special” attention.

This basically formalizes what was already happening under the radar. We’ve known for a couple of years now that the Drug Enforcement Administration and the IRS were getting information from the NSA. Because that information was obtained without a warrant, the agencies were instructed to engage in “parallel construction” when explaining to courts and defense attorneys how the information had been obtained. If you think parallel construction just sounds like a bureaucratically sterilized way of saying big stinking lie, well, you wouldn’t be alone. And it certainly isn’t the only time that that national security apparatus has let law enforcement agencies benefit from policies that are supposed to be reserved for terrorism investigations in order to get around the Fourth Amendment, then instructed those law enforcement agencies to misdirect, fudge and outright lie about how they obtained incriminating information — see the Stingray debacle. This isn’t just a few rogue agents. The lying has been a matter of policy. We’re now learning that the feds had these agreements with police agencies all over thecountry, affecting thousands of cases.

Cops hate encryption but the NSA loves it when you use PGP

Cops hate encryption but the NSA loves it when you use PGP


Although the cops and Feds wont stop banging on and on about encryption – the spies have a different take on the use of crypto.

To be brutally blunt, they love it. Why? Because using detectable encryption technology like PGP, Tor, VPNs and so on, lights you up on the intelligence agencies’ dashboards. Agents and analysts don’t even have to see the contents of the communications – the metadata is enough for g-men to start making your life difficult.

“To be honest, the spooks love PGP,” Nicholas Weaver, a researcher at the International Computer Science Institute, told the Usenix Enigma conference in San Francisco on Wednesdy. “It’s really chatty and it gives them a lot of metadata and communication records. PGP is the NSA’s friend.”

Weaver, who has spent much of the last decade investigating NSA techniques, said that all PGP traffic, including who sent it and to whom, is automatically stored and backed up onto tape. This can then be searched as needed when matched with other surveillance data.

Given that the NSA has taps on almost all of the internet’s major trunk routes, the PGP records can be incredibly useful. It’s a simple matter to build a script that can identify one PGP user and then track all their contacts to build a journal of their activities.

Even better is the Mujahedeen Secrets encryption system, which was released by the Global Islamic Media Front to allow Al Qaeda supporters to communicate in private. Weaver said that not only was it even harder to use than PGP, but it was a boon for metadata – since almost anyone using it identified themselves as a potential terrorist.

“It’s brilliant!” enthused Weaver. “Whoever it was at the NSA or GCHQ who invented it give them a big Christmas bonus.”

Rand Paul: ‘Appalled’ By NSA Spying on Members of Congress

Rand Paul: ‘Appalled’ By NSA Spying on Members of Congress


Senator Sen. Rand Paul (R-KY) says he is “appalled” by the recent revelation that the National Security Administration eavesdropped on Israeli leaders, American-Jewish groups, and members of Congress.

“I’m appalled by it,” Paul said on Fox News’ Fox and Friends. “This is exactly why we need more NSA reform.”

Paul said that since the San Bernardino terrorist attack, the NSA debate has been focused on more surveillance.

“Since the San Bernardino shooting everybody’s saying ‘oh, we need more surveillance of Americans’” Paul said. “In reality what we need is more targeted surveillance.”

“I’m not against surveillance” Paul added. “But I am against indiscriminate surveillance.”

“It’s a real invasion of our privacy,” said Paul. “You can see how we stifle speech if you’re going to eavesdrop on congressmen, and that it might stifle what they say or who they communicate with. And this is a big, big problem.

Trump Says He Supports Reauthorizing Patriot Act, NSA Metadata Collection

Trump Says He Supports Reauthorizing Patriot Act, NSA Metadata Collection


2016 Republican presidential candidate and billionaire real estate mogul Donald Trump said that he supports reauthorizing the USA PATRIOT Act and bulk cell phone metadata collection by the National Security Agency in an interview on the Hugh Hewitt Show earlier this month.

In the above-embedded clip, Hewitt asks Trump, “On metadata collection, Ted Cruz is glad the NSA got out of it. Marco Rubio wants it back. What’s Donald Trump think?”

“Well, I tend to err on the side of security, I must tell you,” Trump replied, “and I’ve been there for longer than you would think. But, you know, when you have people that are beheading if you’re a Christian and frankly for lots of other reasons, when you have the world looking at us and would like to destroy us as quickly as possible, I err on the side of security, and so that’s the way it is, that’s the way I’ve been, and some people like that, frankly, and some people don’t like that.”

Jeb Bush Proposes Increasing NSA Spying Powers To Combat ‘Evildoers’

Jeb Bush Proposes Increasing NSA Spying Powers To Combat ‘Evildoers’


GOP presidential candidate and former Florida Gov. Jeb Bush has been a particularly vocal advocate for the National Security Agency’s mass surveillance program, and on Tuesday he said he believes the NSA should have increased spying powers in order to combat “evildoers.”

Bush criticized the changes that were made to the NSA’s authority when the U.S. passed the USA Freedom Act after the Patriot Act expired in June. He also said he disagreed with the argument that the NSA collected bulk data records from innocent Americans violates their constitutionally protected privacy rights.

“There’s a place to find common ground between personal civil liberties and NSA doing its job,” Bush said. “I think the balance has actually gone the wrong way.”

In May, a federal appeals court ruled that NSA data collection is illegal, stating that Section 215 of the Patriot Act, which was used to justify the program, “cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.”

Section 215 expired on June 1, and after lengthy debate in the Senate on whether the NSA should continue its illegal surveillance, the USA Freedom Act was passed on June 2. The USA Freedom Act changes the channels the government has to go through to collect Americans’ records by transferring bulk data collection records from the NSA, to private companies.

While the USA Freedom Act was supposed to end NSA’s bulk data collection, the Department of Justice submitted a request to the Foreign Intelligence Surveillance Court asking the Court to reinstate the NSA’s collection for the next six months, and to ignore the ruling from the Federal Appeal’s Court. The FISA court approved the request, and allowed NSA data collection through November 29, 2015.

On Tuesday, Bush also criticized private technology companies for encrypting their products in an attempt to make it harder for the NSA to gain access.

Zombie Patriot Act Will Keep U.S. Spying—Even if the Original Dies

Zombie Patriot Act Will Keep U.S. Spying—Even if the Original Dies


Forget the White House’s doomsday talk about American intelligence going blind. Thanks to backdoor provisions and alternate collection schemes, U.S. spies will keep on snooping.

President Obama and his top national-security officials spent the past few days warning that once intelligence-gathering authorities in the Patriot Act expired just after midnight Sunday, the United States would face a greater risk of a terrorist attack.

That argument is highly debatable—at least, in the short term. Not only does the U.S. government have all sorts of other ways to collect the same kind of intelligence outlined in the Patriot Act, but there’s also a little-noticed back door in the act that allows U.S. spy agencies to gather information in pretty much the same ways they did before.

In other words, there’s a zombie Patriot Act—one that lives on, though the existing version is dead.

On Sunday night, senators voted overwhelmingly to end debate on a measure passed in the House, the USA Freedom Act, which will leave most surveillance authorities in the Patriot Act intact. But some of those powers won’t expire at least until Tuesday and possibly Wednesday. Administration officials had warned that even a momentary interruption posed a grave risk.

“I don’t want us to be in a situation in which for a certain period of time those authorities go away and suddenly we’re dark, and heaven forbid we’ve got a problem where we could’ve prevented a terrorist attack or apprehended someone who was engaged in dangerous activity,” Obama told reporters at the White House on Friday. On Sunday, CIA Director John Brennan said on CBS’s Face the Nation that there’d “been a little too much political grandstanding and crusading for ideological causes that have skewed the debate on this issue,” an apparent reference to Sen. Rand Paul, a Republican presidential candidate, and his promise to force the law to expire, “but these tools are important to American lives.”

They may be. But they are far from the only tools in the counterterrorism arsenal, and though they are no longer law as of Monday, the United States still has plenty of authority to collect intelligence on jihadis and foreign spies.

For starters, there will be what’s left of the Patriot Act itself. One former U.S. intelligence official told The Daily Beast that Section 214 of the law, which allows “pen register/trap & trace,” could be used to collect phone and even email records. That would not only cover the gap from the expiring NSA program that collects the phone records of Americans’ landline calls, but potentially expand the government’s collection. (No wonder the NSA largely views the bill that would reform the Patriot Act as a major win.)

That former official and another both noted that there are other tools, including under different laws than the Patriot Act, for obtaining “roving wiretaps,” which allow the government to monitor one person’s multiple communications devices.

Following the Senate vote to proceed on to the Freedom Act, Sen. Jim Inhofe (R-OK) told The Daily Beast that the intelligence agencies did have a means to continue surveillance of terrorists and spies.

“I think there are other tools that can be used, but I’m not going to elaborate on them,” Inhofe said.

Director of National Intelligence James Clapper said in a statement Friday if that provision expires, “we will no longer be able to get orders allowing us to effectively track terrorists and spies who switch communications devices.”

Maybe not under the Patriot Act. But both former officials said they were confident that a judge would still grant a warrant drawn up for a single suspect and his multiple devices. They also pointed out that the roving-wiretap provision itself has rarely been used. (According to U.S. courts, 11 roving-wiretap orders were issued in 2013, the most recent year for which figures are available.)

Then there’s another powerful tool that the FBI and intelligence agencies have long had in their arsenal and still will—national-security letters. They make it relatively easy for investigators to gather up all kinds of communications records. This authority can be used to collect phone, Internet, and financial records.

National-security letters were actually around before the Patriot Act became law in 2001, but the legislation lowered the standard that the government must meet to obtain them. They’ll still be comparatively easy to get now that portions of the Patriot Act are off the books.

Patriot Act expires as Paul blocks final vote on NSA reform

Patriot Act expires as Paul blocks final vote on NSA reform


The Senate advanced legislation 77-17 to reform the National Security Agency on Sunday, but parts of the Patriot Act will nonetheless lapse for a few days amid opposition from Sen. Rand Paul (R-Ky.).

The legislation, called the USA Freedom Act, will not reach President Obama’s desk until after the three measures expire at midnight, meaning that the provisions will expire until the bill is passed by the Senate and signed by Obama later this week.

“The Patriot Act will expire tonight,” Paul declared triumphantly from the Senate floor during a rare Sunday evening vote. “It will only be temporary. They will ultimately get their way.”

Obama has supported the measure and had repeatedly urged lawmakers to support it in the days leading up to Sunday’s deadline. The bill needed 60 votes in order to advance.

“The Senate took an important—if late—step forward tonight,” White House spokesman Josh Earnest said in a statement late Sunday. “We call on the Senate to ensure this irresponsible lapse in authorities is as short-lived as possible. On a matter as critical as our national security, individual Senators must put aside their partisan motivations and act swiftly. The American people deserve nothing less.”

A failed gambit by Senate Majority Leader Mitch McConnell (R-Ky.) opened the door to Paul’s use of procedural tactics to delay consideration of the bill.

Paul had made the spying programs unearthed by former government contractor Edward Snowden a central part of his presidential candidacy and vowed to force the expiration of the Patriot Act heading into the weekend.

Paul argues the USA Freedom Act — which was approved by the House 338-88 earlier in May — does not go far enough to rein in spying programs that he and his allies argue are unconstitutional.

“Are we going to so blithely give up our freedom? Are we going to so blindly go along and take it?” Paul said in heated remarks on the Senate floor before the vote.

“I’m not going to take it anymore,” he declared, as his voice rose to a shout. “I don’t think the American people are going to take it anymore.”

Paul — who had roughly two dozen supporters crowding the gallery of the Senate in red “Stand with Rand” t-shirts — appeared to declare victory after the vote.

“We didn’t have 60 votes before to end the bulk collection,” he told reporters after emerging from the chamber. “By slowing the process down, talking about the Patriot Act, we now will end bulk collection of records by the government.”

McConnell introduced a handful of amendments Sunday evening on behalf of himself and Senate Intelligence Committee Chairman Richard Burr (R-N.C.). Paul and Sen. Bernie Sanders (I-Vt.) has also attempted to bring up amendments of their own, but they were blocked.

Paul’s opposition will push votes on both those amendments and the final bill back to Tuesday at the earliest, and potentially Wednesday.

The House would then either need to vote on the new bill or hash out the details in a conference committee.

Rep. Justin Amash (R-Mich.) — an NSA critic — warned senators against adding amendments to the legislation that could potentially weaken the bill in the eyes of its supporters.

“On the House side there’s not support for a more watered down version of the Freedom Act,” he said. “If they want to get something passed through the House they need to make it better not worse.”

Tensions between Paul and other Senate Republicans were evident throughout Sunday’s proceedings — particularly when the Kentucky Republican sought to speak in opposition to the bill when Sens. Dan Coates (R-Ind.) and John McCain (R-Ariz.) were holding the floor.

“The senator from Kentucky needs to learn the rules of the Senate,” McCain said.

“Maybe the senator from Kentucky should know the rules of the Senate.”

Paul a little more than a week ago blocked the Senate from considering a short-term extension of the Patriot Act, which also could have prevented a lapse in the program if the House had found a way to consider it.

The Weird End of the NSA’s Phone Dragnet

The Weird End of the NSA’s Phone Dragnet


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Earlier this month, a federal appeals court ruled that while the surveillance agency has long claimed to be acting in accordance with Section 215 of the Patriot Act, the text of that law in fact authorizes no such program. The Obama Administration has been executing a policy that the legislature never passed into being.

But the law that doesn’t even authorize the program is set to expire at the end of the month. And so the court reasoned that Congress could let it expire or vote to change it. For this reason, the court declined to issue an order shutting the program down.

President Obama didn’t shut the program down either. One might think the illegality of its ongoing operations would bother him, but he’s effectively punted to Congress too.

Days ago, the House of Representatives acted: they voted overwhelmingly, 338 to 88, “to end the National Security Agency’s mass collection of phone records from millions of Americans with no ties to terrorism,” passing the USA Freedom Act, an effort “to rein in NSA surveillance while renewing key sections of the… Patriot Act.” The bill divided civil libertarians, some of whom thought it didn’t go far enough because the government could still access bulk data held by phone companies.

That brings us to the wee hours of Saturday morning. “After vigorous debate and intense last-minute pressure by Republican leaders, the Senate on Saturday rejected legislation that would end the federal government’s bulk collection of phone records,” The New York Times reports. “With the death of that measure — passed overwhelmingly in the House — senators then scrambled to hastily pass a short-term measure to keep the program from going dark when it expires June 1 but failed.”

The outcome is good for civil libertarians: the House is in recess; barring the unexpected, the phone dragnet will end June 1, when key provisions of the Patriot Act expire. And Senator Rand Paul seems to deserve extra credit for that outcome: “The measure failed in the Senate 57 to 42, with 12 Republicans voting for it, shortly after midnight because Mr. Paul, a candidate for the White House, dragged the procedure out as he promised to do in fund-raising tweets and emails.”

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Paul disrupts Senate endgame

Paul disrupts Senate endgame


The Senate’s frenzied efforts to finish work on controversial trade and national security legislation are being complicated by a Rand Paul filibuster launched Wednesday.

Sen. Paul’s (R-Ky.) filibuster hampers the GOP-led Senate’s efforts to pass the big-ticket items before the Memorial Day recess. The new twist in this week’s Senate deliberations is a huge test for Majority Leader Mitch McConnell (R-Ky.), who is a Paul ally.

Paul, who is running for the GOP presidential nomination, began speaking on the Senate floor against the National Security Agency’s surveillance programs in the middle of a debate over fast-track trade legislation.

Paul’s move will require McConnell to get a series of unanimous-consent agreements if he is to stick to his timeline of passing fast-track and an extension of the Patriot Act this week. Any one senator can block such an agreement, and there are many who feel strongly about trade and the nation’s spying powers. Senate officials say there is a chance proceedings could extend well into the holiday weekend.

Aides say fast-track and a short-term extension of surveillance authority likely have the votes to pass the upper chamber. But the Senate might not have enough time to get the bills done over the next couple of days.

Furthermore, key provisions of the Patriot Act expire June 1, and lawmakers are not scheduled to return to Washington before then. The House, meanwhile, is expected to leave town Thursday.

House GOP leaders note they have passed an NSA reform bill, which is backed by most congressional Democrats and President Obama. McConnell and other Senate Republicans strongly oppose it.

Senate Democrats, who have been extremely divided over trade this month, have shifted strategies. Instead of focusing on fast-track, they are now talking much more about NSA reform — which has pitted Speaker John Boehner (R-Ohio) against McConnell.

Sen. Dianne Feinstein (D-Calif.), who often serves as a bellwether of the Democratic caucus, said she planned to vote in favor of advancing fast-track on Thursday. Democrats who oppose the trade bill acknowledge it has the votes to pass eventually.

But senators will have to decide whether they want to spend the recess in the Capitol instead of barbecuing or attending parades in their home states.

On Wednesday, McConnell told reporters he planned to “grind” ahead. He told his colleagues that he would keep the Senate in session through the three-day weekend if that’s what it takes to get its work done.

“Mitch is being smart. With all these games going on back-and-forth, he’s telling people we’re going to be here as long as it takes. That’s going to put pressure on people to compromise,” a Republican senator said after a meeting of the Senate GOP steering committee.

In the last Congress, Sen. Harry Reid (D-Nev.), then Senate majority leader, often threatened to work though weekends. Many times, Reid would back off or deals would be struck in time for members to catch their planes back home.

But McConnell is now running the Senate, and he plays his cards very close to the chest.

A GOP leadership aide said that no matter what, the pending bills would be addressed before the Senate adjourns.

The Senate will vote on cloture to a legislative package that includes the substance of the trade language. Without cooperation from the entire Senate, a combined 60 hours of procedural time would have to elapse before a final vote on fast-track.

Paul’s filibuster, however, threw the endgame into confusion; he launched into an open-ended talkathon, relieved at times by Sens. Ron Wyden (D-Ore.) and Mike Lee (R-Utah).

Amash amendment only enforced Patriot Act, not Fourth Amendment

Amash amendment only enforced Patriot Act, not Fourth Amendment


Last week, Rep. Justin Amash, R-Mich., introduced an amendment to the Defense Appropriations Bill. It required the NSA and other government agencies merely to obey the Patriot Act, not the Fourth Amendment. That the data to be collected are “relevant to an ongoing national security investigation” doesn’t mean that there is probable cause that the person whose records are collected has committed a crime.

The language was taken from Sec. 214 of the Patriot Act, which amended Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842).

Amash’s amendment did not attempt to enforce the standard set in the Fourth Amendment, which requires “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” That the data to be collected is merely relevant to an ongoing national security investigation doesn’t necessarily mean that there is probable cause that the person whose records are collected has committed a crime.

That means the Patriot Act is unconstitutional, according to any reasonable interpretation of the Fourth Amendment.

The NSA’s activities do not even meet the lower standards set by the Patriot Act. They are illegal even under an unconstitutional law.

It is important to remember the difference between “constitutional” and “legal.” Legal means the activity in question complies with existing law passed by a legislative body. Constitutional means the legislative body had been given the power to pass the law in the first place.

The U.S. Congress not only wasn’t given the power to pass the Patriot Act, it was strictly prohibited from doing so by the Fourth Amendment. Congress passed the legislation anyway. The NSA hasn’t even complied with that.

You live, so you’re obviously guilty, according to Congress

You live, so you’re obviously guilty, according to Congress


There’s more Orwellian double-speak in action in Congress.

On Wednesday, the House passed the USA Freedom Act 338-88. As is always the case in the District of Corruption, the new law does exactly the opposite of what its name purports.

The bill overturns the recent ruling by the 2nd U.S. Circuit Court of Appeals that National Security Agency bulk telephone metadata collection exceeded what was authorized in the so-called USA Patriot Act. The misnamed Freedom Act actually expands the statutory basis for the large-scale collection of most data.

Now phone companies have to hold, search and analyze the data at government’s request. The Freedom Act authorizes the government to order phone companies to turn over records based upon a “specific selection term.” Think of it as using a search term in a search engine.

A non-specific term can turn up a vast amount of unrelated data that will find its way into the NSA’s computers. In short, it casts an even wider net than the one the NSA was using without authorization, but now it’s an “authorized” net.

Why did so many libertarians vote against a bill that’s supposed to rein in the NSA?

Why did so many libertarians vote against a bill that’s supposed to rein in the NSA?


If the USA Freedom Act, which passed the House overwhelmingly Wednesday, really reins in the National Security Agency’s bulk telephone metadata collection program, why did so many Republican critics of mass data collection vote against it?

This not only included Rep. Justin Amash, R-Mich., who spearheaded a bipartisan push to end blanket surveillance in 2013, but a virtual who’s who of libertarian-leaning Republican members of the House and their conservative fellow travelers: Thomas Massie, Raul Labrador, Dave Brat, Tim Huelskamp, Jim Jordan, Tom McClintock, Mark Meadows, Mick Mulvaney, Walter Jones, Mark Sanford and Jimmy Duncan. Duncan is the only Republican still in Congress who voted against the Iraq War.

Amash, who explains all his votes on Facebook, argues that the bill in its current form erodes a recent U.S. Court of Appeals for the Second Circuit ruling that the mass data collection isn’t legal under Section 215 of the Patriot Act.

The third-term congressman writes, “It’s true that the bill ends the phone dragnet as we currently know it — by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold — but H.R. 2048 actually expands the statutory basis for the large-scale collection of most data.”

In other words, a federal court ruled that there was no statutory basis for the blanket data collection being carried out by the NSA. The USA Freedom Act as now written, Amash contends, provides one.

In Holding NSA Spying Illegal, the Second Circuit Treats Data as Property

In Holding NSA Spying Illegal, the Second Circuit Treats Data as Property


The U.S. Court of Appeals for the Second Circuit has ruled that section 215 of the USA-PATRIOT Act never authorized the National Security Agency’s collection of all Americans’ phone calling records. It’s pleasing to see the opinion parallel arguments that Randy Barnett and I put forward over the last couple of years.

Two points from different parts of the opinion can help structure our thinking about constitutional protection for communications data and other digital information. Data is property, which can be unconstitutionally seized.

As cases like this often do, the decision spends much time on niceties like standing to sue. In that discussion—finding that the ACLU indeed has legal standing to challenge government collection of its calling data—the court parried the government’s argument that the ACLU suffers no offense until its data is searched.

“The Fourth Amendment protects against unreasonable searches and seizures,” the court emphasized. Data is a thing that can be owned, and when the government takes someone’s data, it is seized.

In this situation, the data is owned jointly by telecommunications companies and their customers. The companies hold it subject to obligations they owe their customers limiting what they can do with it. Think of covenants that run with land. These covenants run with data for the benefit of the customer.

Far later in the decision, on the other side of the substantive ruling that section 215 doesn’t authorize the NSA’s program, the court discusses the Supreme Court’s 2012 Jones decision.Jones found that attaching a GPS tracking device to a vehicle requires a warrant.

Top federal court rules against NSA’s phone records program

Top federal court rules against NSA’s phone records program


A federal court has decided that the National Security Agency’s bulk, warrantless collection of millions of Americans’ phone records is illegal.

The sweeping decision from the Second Circuit Court of Appeals on Thursday represents a major court victory for opponents of the NSA and comes just as Congress begins a fight over whether to renew the underlying law used to justify the program.

That program “exceeds the scope of what Congress has authorized,” Judge Gerard Lynch wrote on behalf of the three-judge panel.

The law “cannot be interpreted in a way that defies any meaningful limit,” he added.

Additionally, the government’s rationale behind the program represents “a monumental shift in our approach to combating terrorism,” which was not grounded in a clear explanation of the law.

The Second Circuit’s decision provides the most significant legal blow to the NSA operations to date and comes more than a year after a lower court called the program “almost-Orwellian” and likely unconstitutional.

The appeals court did not examine the constitutionality of the surveillance program in its ruling on Thursday.

The Second Circuit is just one of the three appeals courts examining challenges to the NSA’s phone records program, which may ultimately land at the Supreme Court.

Section 215 of the Patriot Act authorizes the government to collect “any tangible things” that the government proves are “relevant to” an investigation into suspected terrorists.

With the blessing of the Foreign Intelligence Surveillance Court — the secretive federal court overseeing government intelligence operations — the government has interpreted that mandate to allow it to collect massive amounts of records containing “metadata” about people’s phone calls, including the numbers involved in the call and when it occurred.

While seemingly benign, metadata can reveal “civil, political, or religious affiliations,” Lynch wrote, as well as personal behavior and “intimate relationships.”

But that reading, the court ruled, is far beyond what Congress ever intended.

“If the government is correct, it could use § 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e‐mail and social media information) relating to all Americans,” Lynch wrote.

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.”