CA2: § 215 of the Patriot Act does not authorize the NSA’s bulk collection of metadata of telephone calls

§ 215 of the Patriot Act does not authorize the NSA’s bulk collection of metadata of telephone calls, but the decision is stayed. The third party doctrine is important, but it doesn’t have to be reached. SCOTUS’s Amnesty International v. Clapper on lack of standing is distinguished because it is clear that the plaintiffs’ calls were intercepted and the controversy is not speculative. ACLU v. Clapper, 2015 U.S. App. LEXIS 7531 (2d Cir. May 7, 2015)

This appeal concerns the legality of the bulk telephone metadata collection program (the “telephone metadata program”), under which the National Security Agency (“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.  Appellants challenge the program on statutory and constitutional grounds.  Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants’ constitutional arguments.  We affirm the district court’s denial of appellants’ request for a preliminary injunction.

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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.

IV. Constitutional Claims

In addition to arguing that the telephone metadata program is not authorized by § 215, appellants argue that, even if the program is authorized by statute, it violates their rights under the Fourth and First Amendments to the Constitution.  The Fourth Amendment claim, in particular, presents potentially vexing issues.

Appellants contend that the seizure from their telephone service providers, and eventual search, of records of the metadata relating to their telephone communications violates their expectations of privacy under the Fourth Amendment in the absence of a search warrant based on probable cause to believe that evidence of criminal conduct will be found in the records.  The government responds that the warrant and probable cause requirements of the Fourth Amendment are not implicated because appellants have no privacy rights in the records.  This dispute touches an issue on which the Supreme Court’s jurisprudence is in some turmoil.

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Appellants argue that the telephone metadata program provides an archetypal example of the kind of technologically advanced surveillance techniques that, they contend, require a revision of the third-party records doctrine.  Metadata today, as applied to individual telephone subscribers, particularly with relation to mobile phone services and when collected on an ongoing basis with respect to all of an individual’s calls (and not merely, as in traditional criminal investigations, for a limited period connected to the investigation of a particular crime), permit something akin to the 24-hour surveillance that worried some of the Court in Jones.  Moreover, the bulk collection of data as to essentially the entire population of the United States, something inconceivable before the advent of high-speed computers, permits the development of a government database with a potential for invasions of privacy unimaginable in the past.  Thus, appellants argue, the program cannot simply be sustained on the reasoning that permits the government to obtain, for a limited period of time as applied to persons suspected of wrongdoing, a simple record of the phone numbers contained in their service providers’ billing records.

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 note first that whether Congress has considered and authorized a program such as this one is not irrelevant to its constitutionality.  The endorsement of the Legislative Branch of government provides some degree of comfort in the face of concerns about the reasonableness of the government’s assertions of the necessity of the data collection.  Congress is better positioned than the courts to understand and balance the intricacies and competing concerns involved in protecting our national security, and to pass judgment on the value of the telephone metadata program as a counterterrorism tool.  Moreover, the legislative process has considerable advantages in developing knowledge about the far-reaching technological advances that render today’s surveillance methods drastically different from what has existed in the past, and in understanding the consequences of a world in which individuals can barely function without involuntarily creating metadata that can reveal a great deal of information about them.  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 – in assessing whether the availability of information to telephone companies, banks, internet service providers, and the like, and the ability of the government to collect and process volumes of such data that would previously have overwhelmed its capacity to make use of the information, render obsolete the third-party records doctrine or, conversely, reduce our expectations of privacy and make more intrusive techniques both expected and necessary to deal with new kinds of threats.