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5/7. The U.S. Court of Appeals (2ndCir) issued its
opinion
in ACLU v. Clapper, holding that the National Security
Agency's (NSA) telephone metadata collection program is not authorized by Section 215 of the
USA PATRIOT Act.
The Court of Appeals vacated the judgment of the U.S.
District Court (SDNY), which had upheld the program, and remanded. However, the Court of
Appeals upheld the District Court's denial of the ACLU's motion for a preliminary injunction.
Also, the Court of Appeals did not rule upon the Constitutional challenges.
Section 215 was a part of the USA PATRIOT Act enacted in 2001. That Act sunsetted Section
215 in 2015. The Congress has continuously extended the sunset. It is scheduled to sunset again
on June 1, 2015. The is legislation pending to extend and modify this section.
See also, related stories in this issue titled "Section 215 and the NSA's Bulk Telephone
Data Program" and "Reaction to the 2nd Circuit's Opinion on Section 215"
Bulk Data Collection Program At Issue. The opinion of the Court of Appeals states that
under the program at issue in this case the NSA "collects in bulk ``on an ongoing daily basis´´
the metadata associated with telephone calls made by and to Americans, and aggregates those
metadata into a repository or data bank that can later be queried".
This program "involves the bulk collection by the government of telephone metadata created
by telephone companies in the normal course of their business but now explicitly required by the
government to be turned over in bulk on an ongoing basis."
The opinion of the Court of Appeals elaborates that "telephone metadata do not include
the voice content of telephone conversations. Rather, they include details about
telephone calls, including, for example, the length of a call, the phone number
from which the call was made, and the phone number called. Metadata can also
reveal the user or device making or receiving a call through unique ``identity numbers´´
associated with the equipment (although the government maintains that the
information collected does not include information about the identities or names
of individuals), and provide information about the routing of a call through the
telephone network, which can sometimes (although not always) convey information
about a caller's general location. According to the government, the metadata it
collects do not include cell site locational information, which provides a more
precise indication of a caller's location than call-routing information does."
(Parentheses in original.)
The opinion states that much information can be revealed by this metadata. For example,
"a call to a single-purpose telephone number such as a ``hotline´´ might reveal that an
individual is: a victim of domestic violence or rape; a veteran; suffering from an addiction
of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil,
political, or religious affiliations; they can also reveal an individual’s social status, or
whether and when he or she is involved in intimate relationships."
The government kept this program secret from the public and almost all Members of Congress.
However, Edward Snowden disclosed information about the program to the newspaper The Guardian,
including a copy of an order issued by the
government body titled "Foreign Intelligence Surveillance Court" or "FISC" to
Verizon. The Guardian began publishing news stories in June of 2013. The government then
publicly admitted the existence of the program.
See, story titled "FISC Orders Verizon to Produce Call Data for Everyone Every Day"
in TLJ Daily E-Mail Alert No.
2,571, June 5, 2013. See also, stories in
TLJ Daily E-Mail Alert No.
2,573, June 8, 2013, and TLJ
Daily E-Mail Alert No. 2,574, June 10, 2013.
The Guardian published a copy of a FISC order directed to Verizon. The
Court of Appeals added, the government did not seriously dispute that "all significant
service providers in the United States are subject to similar orders".
The opinion notes that the FISC issued its first order authorizing this
program in 2006, and that the FISC has continuously reauthorized it since then.
 District Court. The
American Civil Liberties
Union (ACLU), and several of its affiliated entities, filed a
complaint in the
U.S. District Court (SDNY) on June 11, 2013 against
various federal government officials responsible for the program at issue, including
James
Clapper (at right), the Director of National Intelligence (DNI). The plaintiffs sued on
their own behaves, as customers of Verizon.
They asked the District Court to declare that the telephone metadata program exceeds the
authority granted by § 215, and violates the First and Fourth Amendments to the Constitution.
They asked the District Court to permanently enjoin defendants from continuing the program, and
order the defendants to purge their data.
In August of 2013 the plaintiffs filed a motion for a preliminary injunction and
supporting memorandum.
The defendants filed a
motion to dismiss the complaint. They argued that the plaintiffs lack standing to sue, that
Section 215 and other statutes impliedly preclude judicial review, that Section 215 authorizes
the telephone metadata program at issue, that the program does not violate the plaintiffs' First
Amendment rights, and that the program does not violate the plaintiffs' Fourth Amendment rights.
On December 27, 2013 the District Court granted the defendants' motion to dismiss, and
denied the plaintiffs' motion for a preliminary injunction. See,
memorandum and order published at 959 F. Supp. 2d 724.
The District Court held that the plaintiffs have standing to sue, but that the program is
authorized by statute, and that statutes impliedly preclude judicial review. It also held
that the program does not violate either the First or Fourth Amendments.
Rep. Sensenbrenner. Various persons and entities filed amicus curiae briefs in the
District Court (and in the Court of Appeals). One filed by
Rep. James Sensenbrenner (R-WI) is particularly
significant.
He was the Chairman of the House Judiciary
Committee (HJC) in 2001 when the Congress enacted the USA PATRIOT Act, and its Section 215.
He was one of the authors of the bill.
 Rep. Sensenbrenner (at right) wrote that "The
Defendants attempt to justify their practice of collecting the records of every telephone call
made to or from the United States, including purely domestic calls, by claiming that Congress
intended to authorize precisely such a program when it enacted and reauthorized Section 215 of
the Act".
"But Congress intended no such thing."
He continued that "Amicus curiae is a Member of Congress who was the author of the original
Patriot Act, in 2001, and supported its revision in 2006 and its reauthorizations in 2009 and 2011.
Amicus agrees with Defendants that in enacting Section 215, Congress granted the Executive branch
broad investigative powers relating to investigations of suspected foreign terrorist activities.
However, amicus vehemently disputes that Congress intended to authorize the program challenged
by this lawsuit, namely, the unprecedented, massive collection of the telecommunications data
of millions of innocent Americans. Indeed, the unfocused dragnet undertaken by Defendants is
exactly the type of unrestrained surveillance Congress, including amicus, tried to
prevent."
He concluded, "Amicus thus urges the Court to find that the bulk data collection program
challenged in this lawsuit is not authorized by Section 215 or any other provision of law."
Court of Appeals: Standing. Plaintiffs appealed to the Court of Appeals. See,
plaintiffs' brief, defendants'
brief, and plaintiffs'
reply brief.
Plaintiffs argued on appeal that the program is not authorized by 215, that judicial
review is not precluded, and that the program violates the First and Fourth Amendments.
Defendants argued the contrary, and also that the District Court erred in holding that the
plaintiffs have standing.
Judge Lynch wrote the opinion of the Court, in which Judge Broderick joined. Judge Sack wrote a
concurring opinion. He wrote that "I fully concur in Judge Lynch's opinion for the
Court."
First, the Court of Appeals affirmed the District Court's holding that plaintiffs
have standing to sue.
It wrote that the plaintiffs "need not speculate that the government has
collected, or may in the future collect, their call records. To the contrary,
the government's own orders demonstrate that appellants' call records are indeed
among those collected as part of the telephone metadata program. Nor has the
government disputed that claim. It argues instead that any alleged injuries here
depend on the government’s reviewing the information collected, and that
appellants have not shown anything more than a ``speculative prospect that their
telephone numbers would ever be used as a selector to query, or be included in
the results of queries of, the telephony metadata.´´"
But, the Court reasoned, the Fourth Amendment protects against "unreasonable searches
and seizures". Seizure, or collection of data, alone is sufficient to confer standing.
In addition, the Court noted that when the government "queries its database,
its computers search all of the material stored in the database in order to
identify records that match the search term. In doing so, it necessarily
searches appellants’ records electronically, even if such a search does not
return appellants’ records for close review by a human agent."
The Court also found standing to bring a First Amendment claim. "When the government
collects appellants’ metadata, appellants’ members’ interests in keeping their associations
and contacts private are implicated, and any potential “chilling effect” is created at that
point. Appellants have therefore alleged a concrete, fairly traceable, and redressable injury
sufficient to confer standing to assert their First Amendment claims as well."
Thus, the Court of Appeals affirmed the judgment of the District Court that
the plaintiffs have standing.
Court of Appeals: Judicial Review. Second, the Court of Appeals held
that judicial review is not precluded. The government offered complex arguments,
based on several statutes, that judicial review in the present action is
precluded. The Court of Appeals rejected these arguments.
It concluded that "the government relies on bits and shards of inapplicable
statutes, inconclusive legislative history, and inferences from silence in an
effort to find an implied revocation of the APA's authorization of challenges to
government actions. That is not enough to overcome the strong presumption of the
general command of the APA against such implied preclusion. Congress, of course,
has the ability to limit the remedies available under the APA; it has only to
say so. But it has said no such thing here. We should be cautious in inferring
legislative action from legislative inaction, or inferring a Congressional
command from Congressional silence. At most, the evidence cited by the
government suggests that Congress assumed, in light of the expectation of
secrecy, that persons whose information was targeted by a § 215 order would
rarely even know of such orders, and therefore that judicial review at the
behest of such persons was a nonissue. But such an assumption is a far cry from
an unexpressed intention to withdraw rights granted in a generally
applicable, explicit statute such as the APA."
And hence, it reversed the District Court on this issue.
Court of Appeals: Section 215 Authority. Third, the Court of Appeals
reversed as to authority to conduct the telephone metadata surveillance program.
The government relied heavily upon the phrase "relevant to an authorized
investigation" in the statute in arguing that creating its telephone metadata
program for future querying is authorized by the statute.
The Court reasoned that "The interpretation urged by the government would require a
drastic expansion of the term ``relevance,´´ not only with respect to § 215, but also as that
term is construed for purposes of subpoenas, and of a number of national security-related
statutes, to sweep further than those statutes have ever been thought to reach."
It concluded that "to allow the government to collect phone records only
because they may become relevant to a possible authorized investigation in the
future fails even the permissive ``relevance´´ test."
The Court also rejected the government's argument that the Congress ratified the government's
interpretation of the statute by extending the sunsets on Section 215. In short, the government
cannot rely upon this argument when it had kept its program secret, not only from the public,
but also from almost all members of the House and Senate.
Finally, the Court wrote that "we hold that the text of § 215 cannot bear the weight
the government asks us to assign to it, and that it does not authorize the telephone metadata
program. We do so comfortably in the full understanding that if Congress chooses
to authorize such a far-reaching and unprecedented program, it has every
opportunity to do so, and to do so unambiguously. Until such time as it does so,
however, we decline to deviate from widely accepted interpretations of
well-established legal standards. We therefore disagree with the district court
insofar as it held that appellants' statutory claims failed on the merits, and
vacate its judgment dismissing the complaint."
Court of Appeals: Constitutional Issues. Fourth, the Court of Appeals wrote
that "Because we conclude that the challenged program was not authorized by the
statute on which the government bases its claim of legal authority, we need not
and do not reach these weighty constitutional issues."
However, having concluded that, it engaged in some lengthy discussion of the
Fourth Amendment issue.
The 4th Amendment provides in full that "The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized."
The Court of Appeals wrote that the issues are "daunting", that the Supreme Court's
jurisprudence is "in turmoil", that the Congress is better placed to weigh
national security concerns and privacy, that the 113th Congress
came close to enacting new legislation, and that the 114th Congress is currently
considering bills.
The Court wrote that "Ideally, such issues should be resolved by the courts
only after such debate, with due respect for any conclusions reached by the
coordinate branches of government."
Case Information. This case is American
Civil Liberties Union, et al. v. James Clapper, et al., U.S. Court of
Appeals for the 2nd Circuit, App. Ct. No. 14-42-cv, an appeal from the U.S.
District Court for the Southern District of New York, D.C. No. 13 CIV 3994.
Judge Gerard Lynch wrote the opinion of the Court of Appeals, in which Judge Vernon
Broderick (USDC/SDNY sitting by designation) joined. Judge Robert Sack wrote a
concurring opinion. Judge William Pauley wrote the opinion of the District Court.
Judge Pauley was appointed to the Court by former President Clinton. Judge Sack is a senior
status judge appointed by former President Clinton. Both Judges Broderick and Lynch were
appointed by President Obama.
Alexander Abdo and others represented the ACLU. Stuart Delery and others
represented the government. Numerous amicus curiae parties filed briefs.
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