In a unanimous ruling seven years after former NSA contractor Edward Snowden exposed the federal government's mass surveillance of Americans' phone records, a federal appeals court said Wednesday that the warrantless spying program was illegal, repeatedly citing Snowden's disclosures in its long-awaited decision.
Snowden and other civil liberties advocates applauded the ruling (pdf) by the U.S. Court of Appeals for the Ninth Circuit as further vindication of the whistleblower's decision in 2013 to leak thousands of highly classified NSA documents to journalists Glenn Greenwald, Laura Poitras, and Barton Gellman, who ultimately published the documents, touching off an international scandal to which the Obama administration responded by pursuing espionage charges against Snowden.
"Seven years ago, as the news declared I was being charged as a criminal for speaking the truth, I never imagined that I would live to see our courts condemn the NSA's activities as unlawful and in the same ruling credit me for exposing them," Snowden tweeted late Wednesday. "And yet that day has arrived."
Seven years ago, as the news declared I was being charged as a criminal for speaking the truth, I never imagined that I would live to see our courts condemn the NSA's activities as unlawful and in the same ruling credit me for exposing them.
And yet that day has arrived. https://t.co/FRdG2zUA4U
— Edward Snowden (@Snowden) September 2, 2020
Pardon Snowden https://t.co/Y5aXJ7XeZy
— Kevin Gosztola (@kgosztola) September 2, 2020
While rejecting federal officials' arguments in defense of the mass spying program—authorized under Section 215 of the Patriot Act—the three-judge panel ruled that the unlawful data collection does not undermine the convictions of four Somali immigrants found guilty of fundraising for Al-Shabaab.
"We are convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial," Judge Marsha Berzon wrote in her opinion.
Joshua Dratel, a lawyer for defendant Basaaly Moalin, said he and his client are "disappointed in the result, especially since more recent disclosures regarding misconduct regarding FISA has further revealed how the lack of transparency in the entire process compromises individual rights of those charged with crimes as well as those never charged—including those Americans whose telephone metadata was collected and retained."
"In this case, we believe that the lack of transparency was prejudicial to our ability to challenge the FISA surveillance," said Dratel.
ACLU attorney Patrick Toomey echoed Dratel's criticism of the ruling while also characterizing the decision as "a victory for our privacy rights."
"We are disappointed that, having found the surveillance of Mr. Moalin unlawful, the court declined to order suppression of the illegally obtained evidence in his case," Toomey said in a statement. "The ruling makes plain that the NSA's bulk collection of Americans' phone records violated the Constitution."
"The decision also recognizes that when the government seeks to prosecute a person, it must give notice of the secret surveillance it used to gather its evidence," Toomey added. "This protection is a vital one given the proliferation of novel spying tools the government uses today."