Just Security: The (Telephony) Matrix Reloaded

Just Security: The (Telephony) Matrix Reloaded by Julian Sanchez:

The Obama administration has sought to temporarily relaunch the NSA’s bulk telephone records collection program, which was wound down over recent weeks as its legal foundation, §215 of the Patriot Act, briefly lapsed during the debate over the USA Freedom Act. But may it legally do so? Former Virginia Attorney General (and perennial conservative gadfly) Ken Cuccinelli is teaming with the advocacy group FreedomWorks to challenge the rebooted telephony dragnet.

The Fourth Amendment arguments against the program remain largely unchanged, and so whatever you thought about the constitutionality of indiscriminate collection of domestic telephone records before the passage of the USA Freedom Act, you can probably hang on to your opinion. The statutory argument, however, is rather more complicated. The Second Circuit held prior to the passage of the Freedom Act that in fact the NSA program was never properly authorized by §215. While the Second Circuit’s holdings don’t bind the Foreign Intelligence Surveillance Court, one would at the least expect the FISC to be somewhat circumspect about brushing aside a federal appeals court ruling, and the plaintiffs in that case might well be expected to seek an injunction from the Second Circuit if the FISC should issue another bulk §215 order.