You own your data

“You own your data. And the government needs to start respecting that." This assertion was made recently by Microsoft General Counsel Brad Smith at a Silicon Valley panel discussion on NSA surveillance. Until the US recognizes and restores the fundamental right of ownership you have in your data, he continued, the U.S. cannot hope to rebuild trust lost through the NSA’s widespread surveillance programs."

“If you’re a consumer or a company, you own your email, your text messages, your photos and all the content that you create,” he said. “Even when you put your content in our data centers or on devices that we make, you still own it and you are entitled to the legal protection under our Constitution and our laws. We will not rebuild trust until our government recognizes that fundamental principle.”

Apparently the room erupted in applause and this month a New York Federal Appeals court took a significant step in starting to rebuild corporate trust when it declared illegal the NSA’s program that collects data on landline calling records of nearly every American.

The ruling which is the first of its kind by an appeals court, comes as Congress considers whether to continue, end or overhaul the program before June 1 2015, when the legal provisions authorizing the Patriot act will expire.

The second circuit ruling essentially states that the U.S. government’s practice of collecting massive amounts of telephone metadata in regard to phone calls made by and to Americans violated federal law. The ruling marks a significant blow to a key National Security Agency program.

So here are 5 quick pointers on the NSA Ruling

1             NSA Overstepped Its Bounds, Says Appeals Panel

The New York-based three-judge panel ruled the NSA program wasn’t authorized by the Patriot Act, as the Bush and Obama administrations had long claimed. The government claimed the program was allowed under Section 215 of the Patriot Act, which permits the government to apply for “an order requiring the production of any tangible things…for an investigation…to protect against international terrorism…” But the court found the NSA program went well beyond this.

2             Court Didn’t Address the Constitutional Question

What the court did not address was whether the program is constitutional. Other legal cases have argued that it is not. Opponents say the seizure and search of their records from telephone companies violates their expectations of privacy under the Fourth Amendment because the government failed to obtain a search warrant based on probable cause to believe that evidence of criminal conduct will be found in the records. The program's backers rely on what is known as the third-party doctrine, under which the Supreme Court has held that personal records people voluntarily turn over to companies, including phone records and email, are not protected by the Fourth Amendment.

The program’s challengers had argued the NSA program violated parts of the constitution, including the Fourth Amendment’s ban on “unreasonable searches and seizures.” The court seemed sympathetic to these arguments, but declined to make a ruling on them, largely because it didn’t need to.

3             Court Didn’t Order Immediate End of Program

In a highly unusual move, the court didn’t order the program immediately ended, despite finding it illegal. The court noted that because Section 215 is scheduled to expire on June 1, there was really no reason to disrupt it. “Allowing the program to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on [challengers’] privacy than they faced at the time this litigation began,” wrote the court.

4             In Rare Move, Court Appealed to Congress

Were Congress to approve specifically a program like the NSA’s, the court said, courts might later be inclined to find it legal. “Congress is better positioned than the courts to understand and balance the intricacies and competing concerns involved in protecting our national security,” wrote the court. “A congressional judgment as to what is ‘reasonable’ under current circumstances would carry weight–at least with us, and, we assume, with the Supreme Court as well…”

5             The Issue Will Move Back to Congress

The court's ruling sharpens the focus on the ongoing congressional debate about the program. The Patriot Act provisions in question expire June 1 unless Congress reauthorizes them. Republicans and Democrats in the House have agreed on a bill to do that while also ending the government's bulk collection of the records. Senate leaders are backing a competing measure that would maintain the status quo, but they are open to compromise.

The divisions on the issue don't run neatly along partisan lines. Libertarian-leaning Republicans have joined many Democrats in arguing that a secret intelligence agency should not be storing the records of every American phone call. Some Democrats and Republicans assert that the program is needed now more than ever, given the efforts by the Islamic State group to inspire extremists to attack inside the U.S.

Lawmakers have been haggling over whether to renew, modify or do nothing in regard to Section 215, which is set to expire next month. The ruling is highly likely to further stoke congressional debate over the program, as well as give Congress some possible guideposts to follow.

There are two ways to protect privacy, either through stronger technology or better laws, in the absence of better laws the industry is building stronger technology however we also need better laws. Current laws are way too antiquated to address present-day technologies and circumstances. The Electronic Communications Privacy Act is almost 30 years old. 

Opinions are the authors however information has been sourced in part from wsj.com, CNN and theguardian.com