While it’s been a difficult couple of weeks for privacy activists and advocates however the same can’t be said for the NSA surveillance programs. In Maryland a federal district court tossed a lawsuit (ACLU) that challenged the upstream surveillance by the NSA of the internet back bone. Thereafter a preliminary injunction was refused by The Second Circuit Court of Appeals in favor of ACLU in respect of the bulk phone records program (NSA). This despite prior findings that the program is and was illegal. The court also dismissed arguments by ACLU that the phone records program was unconstitutional in light of it terminating later this month.

Earlier in May the ACLU were successful as being instrumental in labeling the interpretation by government of Section 215 (Patriot Act) as unprecedented and unwarranted. This being the leverage to attempt to justify mass and bulk collection of U.S. citizens phone records. Interestingly in respect of constitutionality a ruling wasn’t forthcoming and a preliminary injunction was refused. This to allow opportunities for dialogue within congress that might (or might not) impact the legal landscape. However it saw the USA Freedom Act take shape which prohibits relying on Section 215 for mass phone records collection. The twist is that it does not come in to effect till end November. The government, by default, sees this as a green light to carry on regardless and continues to harvest phone records in bulk. The FISC ( Foreign intelligence Surveillance Court) in June confirmed it had free reign until that date.

This prompted ACLU in to renewed action over the phone records program. ACLU argued it was unclear as to the direction of Congress. The Second Circuit in May however failed to reach constitutional arguments by ACLU ruling that the program was unauthorized within Section 215. It noted the “constitutional concerns.” Second Circuit in the new ruling relied on the “vexing” nature of these constitutional issues as reason to circumnavigate a decision over a preliminary injunction.

They were complicit with government in agreeing not to embroil themselves in respect of the move away from phone meta data collecting. Also that it would not be a measured and wise engagement of judicial authority. Momentous constitutional issues were qualified against temporary relief. Further qualifying that the time involved would see out the brief transitional period remaining.

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