The American Civil Liberties Union is taking the NSA back to court over its continued bulk collection of phone metadata records.
Although the law the NSA was using to justify its collection of phone records lapsed on June 1, Congress gave it 180 days to transition to a newer, more narrowly defined process of collecting information.
The ACLU is now contesting that. An appeals court already found that the original law, part of the USA Patriot Act, did not justify the collection of such records, so continuing to hoover up that data is unlawful, ACLU staff attorney Alex Abdo argued before the Court of Appeals for the Second Circuit in New York, which made the original ruling.
The three judges, Gerard Edmund Lynch, Robert Sack and Vernon Broderick, ruled in May that bulk collection of phone call data was not warranted by Section 215 of the Patriot Act.
In place of the Patriot Act, Congress later passed the USA Freedom Act, which defines more narrowly the ways law enforcement agents can collect bulk metadata on phone records.
Under the Freedom Act, the telephone companies retain the data and allow only relevant searches by law enforcement and intelligence agencies.
The ACLU wants the court to bar further collection of those records for the next three months and to quarantine existing data collected since June 1.
The judges seemed taken aback by the ACLU's request, given that the 180-day period will lapse on Nov. 28.
"With less than three months to go, why do you want to interfere with this injunction?" Sack asked, noting that it could trigger a deeper investigation of the issue, the outcome of which may not be to the ACLU's advantage.
Abdo argued that even the 180-day interim period could cause harm to parties, including to the ACLU itself.
For instance, the ACLU knows of at least five people on the Transportation Security Administration's no-fly list who called the organization for help. With the phone records collected, a law enforcement agency would be able to find out who made those calls to the ACLU.
The backlog of call information could also pose a danger to U.S. citizens, should a malicious hacker break into the NSA's servers and steal the data, Abdo said.
In a separate case, the ACLU is trying to compel the government to erase all the metadata records it collected, not just the ones captured since June.
Granting the ACLU an injunction could also help clarify that the Patriot Act was unconstitutional, Abdo said -- a matter that Congress seems divided about. Although the appeals court ruled bulk collection to be unwarranted, that decision could still be overturned in the Supreme Court.
Justice Department lawyer Henry Whitaker argued in response that the government needs the old records as sample data that it will need to transition to the new system.