“[W]e 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. “
The Second Circuit Court of Appeals struck down the Government’s interpretation of Section 215 of the Patriot Act (this clause was amended by the Patriot Act but originated in a previous law). Below are some highlight’s of the opinion issued in ACLU v. Clapper (May 7, 2015), and a few thoughts on the opinion.
1. CONTEXT OF THE RULING
Reflected in the Court’s well reasoned and thorough opinion was the impending expiration and possible renewal of this specific section of the Patriot Act.
Congress has renewed § 215 seven times, most recently in 2011, at which time it was amended to expire on June 1, 2015. See PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112‐14, 125 Stat. 216 (2011).
It appears more than coincidental that the expiration of the section and judgment from this Court are temporally proximate. It likely helped the Court strike it down, aware that revision was possible, or that the provision may expire all together. This would give Congress an appropriate opportunity to either let Section 215 expire, leave it as is, or amend it to include the collections of metadata. This is speculative. However, it provides a good example of how the judiciary and legislative branches can work in tandem to refine legislation.
2. JURISDICTION AND STANDING
The Government put in a lot of effort on this case on standing and jurisdictional concerns. It consumes a substantial portion of the opinion and is likely indicative of the low confidence the Government had regarding it’s own interpretation of Section 215 and the possible constitutionality of the statute overall.
On this matter of jurisdiction I have only one major point I would like to highlight. The Government contended that Congress did not intend for district court’s to have jurisdiction over this matter since they “specifically considered, and rejected, an amendment that would have allowed Section 215 orders to be challenged not only in the FISC, but also in district court.” The Court relied on various reasons detailing why this argument was unconvincing. Most importantly from a textual and plain meaning viewpoint, the Court rejected this contention stating:
As Justice Scalia has reminded us, moreover, we should exercise caution in relying on this type of legislative history in attempting to discern Congress’s intent, because it is so often “impossible to discern what the Members of Congress intended except to the extent that intent is manifested in the only remnant of ‘history’ that bears the unanimous endorsement of the majority in each House: the text of the enrolled bill that became law.” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 302 (2010) (Scalia, J., concurring) (emphasis in original). Congress’s rejection of the Nadler amendment cannot reliably be interpreted as a specific rejection of the opportunity for a § 215 target to obtain judicial review, under the APA or otherwise.
3. TEXTUAL INTERPRETATION OF § 215 OF THE PATRIOT ACT
Regarding the scope of the Government’s interpretation of Section 215, the Court points out:
Thus, the government takes the position that the metadata collected – a vast amount of which does not contain directly “relevant” information, as the government concedes – are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted.
Essentially the Court correctly notes that the ‘interpretation’ of relevance adopted by the Federal Government had never been before accepted, nor was it remotely related to a relevant investigation. The Court continued:
The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program. [emphasis added]
Though the Court does not rule on the Constitutionality of the measure adopted by the Government, this may be a foundation for future 4th Amendment litigation regarding this type of vast information collection, even with Congressional approval. It stands to reason that any warrant or other authorization must be limited in scope for the 4th Amendment to have any legal effect. The scope of such inquiries appear to be limited in one of two following ways, as stated by the Court:
But broad as those subpoenas were, the cases cited by the government only highlight the difference between the investigative demands at issue in those cases and the ones at issue here. Both of those examples, and all examples of which we are aware, are bounded either by the facts of the investigation or by a finite time limitation. [emphasis added]
As mentioned before, no such limitations were in place and the Government’s searches were both unlimited in terms of the facts of the investigation and infinite in time, only expiring with the sunset of Section 215.
Further textual analysis of the Government’s interpretation concluded the Government had essentially read out the important terms in the text, “relevant to an authorized investigation (other than a threat assessment).” Claiming that both the “authorized investigation” portion and the “threat assessment” portion had been ignored. Ultimately the Court concludes, relying on a PCLOB report, that:
[Section 215] provides that records cannot be obtained for a “threat assessment,” meaning those FBI investigatory activities that “do not require a particular factual predicate.” By excluding threat assessments from the types of investigations that can justify an order, Congress directed that Section 215 not be used to facilitate the broad and comparatively untethered investigatory probing that is characteristic of such assessments. But by collecting the nation’s calling records en masse, under an expansive theory of their relevance to multiple investigations, the NSA’s program undercuts one of the functions of the “threat assessment” exclusion: ensuring that records are not acquired by the government without some reason to suspect a connection between those records and a specific, predicated terrorism investigation. While the rules governing the program limit the use of telephone records to searches that are prompted by a specific investigation, the relevance requirement in Section 215 restricts the acquisition of records by the government. [emphasis added]
In opposition the Government failed to articulate any “limiting principle” for their requested authority. This, in large part, because there was none, the Court correctly noted that neither factual circumstances nor temporal restrictions were in place and the Government had treated Section 215 as a carte blanche for systematic collection of phone metadata.
The Court avoided any ruling on the 4th Amendment implications and hedges as a result in their ruling. Consider the following section,
Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism. But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.
Initially this appears to be a Constitutional argument, articulating underlying privacy concerns which are reflected in the 4th Amendment. However the latter half of the statement appears to allow for the legislative process to take precedence and make this exception under the pretense of national security. This may come as a concern to many privacy advocates, myself included, however the Court is clearly attempting to avoid the Constitutional issue as much as possible, striking it down clearly on the textual basis but allowing some justifications for the possible implementation of a vast data collection program.
The Court begins the conclusion on the statutory argument “Congress cannot reasonably be said to have ratified a program of which many members of Congress – and all members of the public – were not aware.” The Court appears to place confidence in the legislative process, a theme echoed in the conclusion of the Constitutional analysis as well. Much of the reason for striking this law done was the lack of a legislative process clearly indicating express approval of such a broad and sweeping program.
In conclusion the Court holds the actions by the Government to be unsupported by the statutes.
For all of the above reasons, 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. [emphasis added]
Once again the Court is avoiding a decision on the Constitutional issue but reinforcing textual and plain meaning interpretations. Clearly the court is cognizant of the upcoming expiration of Section 215 and the opportunity that Congress has to let the clause sunset, to renew it in light of the new ruling or explicitly expand the powers granted to match the previous action.
4. CONSTITUTIONAL CONCERNS REGARDING PATRIOT ACT ARE LEFT UNADDRESSED
Lastly, after a lengthy discussion on the possible Constitutional interests, the Court abstains from a decision on Constitutional merits.
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. The seriousness of the constitutional concerns, however, has some bearing on what we hold today, and on the consequences of that holding…
We reiterate that, just as we do not here address the constitutionality of the program as it currently exists, we do not purport to express any view on the constitutionality of any alternative version of the program. The constitutional issues, however, are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary. 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.
My major impressions of the ruling are as follows:
1. There is a clear and expected unwillingness of the Court to rule on Constitutional grounds on this, or any alternate, version of metadata collection programs. Aware of the pending expiration and possible renewal of this statute, it made little sense to engage any further. Also, the Courts have long held as a principle of statutory interpretation that if a constitutional issue can be avoided it should be.
2. The Court appears to place a lot of weight on the legislative process, whether this tips the scale for or against a possible future ruling on the validity of other NSA programs in context of the 4th Amendment is hard to say. But a lot of the language appears deferential to the political process and Congressional action. Whether this outweighs Constitutional concerns is yet to be determined.
3. The Court struck down the actions of the NSA and the Federal Government’s interpretation of the law. This is limited in scope and application. This may easily be changed depending on the actions of Congress come June 1, 2015.
4. There was a lot of good language in the ruling that could and should be applied to a 4th Amendment analysis of warrantless searches and seizures. As well as language to support the limitations of a warrant, whether this argument will be applied broadly to other government sanctioned surveillance programs remains to be seen.
Ultimately this opinion is exactly what is expected from a well engaged judiciary when interpreting statutory provisions. A similar analysis on other statutory cases (King v. Burwell) would be welcome. As far as implications on the overall Patriot Act, it appears that the Court did all it could to walk the line between justifications for striking the actions of the Administration down while not expressing a Constitutional preference.
James C. Devereaux is an attorney and freedom fanatic. Questions, complaints and hysterics can be sent to email@example.com or follow on twitter @jcdevereaux1.by