2nd Circuit Holds NSA Bulk Telephone Data Program Is Not Authorized by Section 215

May 7, 2015. 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.

Outline of this Article:
   1. Introduction.
   2. Bulk Data Collection Program.
   3 District Court.
   4. Rep. Sensenbrenner.
   5. Court of Appeals: Standing
   6. Court of Appeals: Judicial Review.
   7. Court of Appeals: Section 215 Authority.
   8. Court of Appeals: Constitutional Issues.
   9. Case Information.

1. Introduction. 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".

2. Bulk Data Collection Program. 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.

3. 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, 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.

4. 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."

5. 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.

6. 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.

7. 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."

8. 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."

9. 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.

(Published in TLJ Daily E-Mail Alert No. 2,723, May 7, 2015.)