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Federal Court Approves One Last Month of NSA Surveillance

Judges found that Congress expressly meant to authorize the phone-spying program for the 180 days before they are slated to end.

A pan­el of fed­er­al judges de­cided Thursday that the Na­tion­al Se­cur­ity Agency can con­tin­ue its phone-sur­veil­lance pro­gram in the peri­od be­fore a form­al ban en­acted by Con­gress takes ef­fect.

The de­cision from the Second U.S. Cir­cuit Court of Ap­peals, a small vic­tory for the gov­ern­ment, al­lows the NSA to main­tain its bulk-sur­veil­lance pro­gram throughout a 180-day trans­ition peri­od. The trans­ition was en­acted in the USA Free­dom Act, which Pres­id­ent Obama signed on June 2 of this year.

The de­cision came in a case brought by the Amer­ic­an Civil Liber­ties Uni­on against a group of a na­tion­al se­cur­ity of­fi­cials—in­clud­ing Dir­ect­or of Na­tion­al In­tel­li­gence James Clap­per and NSA Dir­ect­or Mike Ro­gers—in an at­tempt to stop the bulk-sur­veil­lance pro­gram in its tracks. The case was filed June 2013.

The civil rights or­gan­iz­a­tion scored a win this May when the court de­clared the NSA’s bulk sur­veil­lance il­leg­al, deem­ing the pro­gram un­sanc­tioned by the Pat­ri­ot Act. After that de­cision, ACLU filed for an in­junc­tion to im­me­di­ately stop the spy­ing.

Thursday’s de­cision, however, ac­know­ledges that al­though the USA Free­dom Act shuts down down the pro­gram in ques­tion, it ex­pressly al­lows them to con­tin­ue throughout the trans­ition peri­od, be­fore a new, less in­trus­ive sys­tem must be in place.

“While we find that ap­pel­lants’ claims are not moot at this time, we de­cline to dis­turb the de­cision by Con­gress to provide for a 180‐day trans­ition peri­od to put an or­derly end to the tele­phone metadata pro­gram.,” Cir­cuit Judge Ger­ard Lynch wrote.

NSA of­fi­cials have told Con­gress that it has not yet moved from its bulk metadata-col­lec­tion pro­gram to the new pro­gram. Ac­cord­ing to the agency, it is count­ing the hours un­til the trans­ition is com­plete. “There is a big clock,” said Re­becca Richards, the NSA’s pri­vacy and civil-liber­ties of­ficer, earli­er this month.

The dead­line is 11:59 p.m. on Novem­ber 29.