by Rod D. Martin
May 12, 2015
As every friend of the Constitution already knew, a federal appeals court has ruled that the NSA’s bulk, warrantless wiretapping of U.S. citizens’ 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 Second Circuit is one of the three appeals courts hearing challenges to the NSA’s phone records program, which is likely to land at the U.S. Supreme Court.
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.
The future of metadata collection is likely up to Congress as it considers which parts of the program will be preserved and in what form. But that is exactly the point. The Constitution’s clear intent notwithstanding, the bulwark of our liberty is always the eternal vigilance of our people. That’s why we have elections. In extremis, as the Founders understood and acted upon, that’s why we have a Second Amendment too.
I am not concerned about technology’s impact on privacy: a free people can certainly regulate technology and keep it within its appropriate bounds, just as they have done for centuries.
What does concern me is the erosion of the people’s freedom, both by Washington’s encroachment and by their own inattention and (thank you teachers’ unions) dumbing down.
Ben Franklin said it best, when upon leaving Independence Hall he was asked by a lady on the street what form of government the Philadelphia convention had produced. “A republic, ma’am,” he said, “if you can keep it.”
The Second Circuit did its part last week to keep it. But it’s up to all of us, always.