Huge Win: Appeals Court Says NSA's Bulk Phone Records Collection Not Actually Authorized By PATRIOT Act

from the huge-win dept

Whoa. In a huge ruling, the Second Circuit appeals court has ruled that the NSA’s bulk phone records collection is not authorized by the PATRIOT Act. In other words, for all the debate about the renewal of Section 215 this month, which the government insists enables such bulk collection, this appeals court says “nope.” The ruling is important on a number of different points, even though it doesn’t touch on the constitutionality of the program. It does make some other key points though. The biggest, as Rep. Jim Sensenbrenner (author of the PATRIOT Act) has said all along is that, contrary to the US government’s claims, Section 215 does not authorize the bulk collection of any data.

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.

The actual ruling is overturning a district court ruling that had previously tossed out a challenge to the Constitutionality of the bulk metadata program by the ACLU. This ruling reinstates that case and sends it back to the lower court. As part of that, the court doesn’t yet rule on the constitutionality of the overall program, but rather just notes that from the plain reading of Section 215, it does not mean that it authorized the government to collect such a massive trove of phone records.

The other key point in the ruling is on the question of “standing.” The DOJ regularly claims that people cannot challenge these programs unless they have specific evidence that they were spied on under the program. Plenty of cases have been thrown out after plaintiffs couldn’t prove that the government had directly applied the program to their information, and thus the courts said they lacked standing. In this case, at least, the district court had found that the ACLU had standing, and the appeals court reconfirms that. But here’s the key point: the court notes that merely the collection of the data is enough to show standing. This is in contrast to the DOJ’s attempt to claim that the collection doesn’t matter — it’s only if the government then looks at the data. The court disagrees, reminding the DOJ that the Fourth Amendment applies to not just “searches” but also “seizures,” and the data collection is a seizure:

Appellants in this case have, despite those substantial hurdles, established standing to sue, as the district court correctly held. Appellants here 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 government?s argument misapprehends what is required to establish standing in a case such as this one. Appellants challenge the telephone metadata program as a whole, alleging injury from the very collection of their telephone metadata. And, as the district court observed, it is not disputed that the government collected telephone metadata associated with the appellants? telephone calls. The Fourth Amendment protects against unreasonable searches and seizures. Appellants contend that the collection of their metadata exceeds the scope of what is authorized by § 215 and constitutes a Fourth Amendment search. We think such collection is more appropriately challenged, at least from a standing perspective, as a seizure rather than as a search. Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them. ?[A] violation of the [Fourth] Amendment is fully accomplished at the time of an unreasonable governmental intrusion.? United States v. Verdugo?Urquidez, 494 U.S. 259, 264 (1990) (internal quotation marks omitted). If the telephone metadata program is unlawful, appellants have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by a favorable ruling.

That’s a very important finding and one that I imagine will also be quite useful in challenging other aspects of NSA surveillance.

Furthermore, the court notes that even beyond the “seizure” aspect, the government is clearly doing “searches” as well:

The government admits that, when it 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. There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government?s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.

The DOJ tried to rely on the big ruling against Amnesty International at the Supreme Court a couple of years ago, noting that that was dismissed because the record collection there was speculative. Yet, in this case, that’s not true:

Here, appellants? alleged injury requires no speculation whatsoever as to how events will unfold under § 215 ? appellants? records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected. Amnesty International?s ?speculative chain of possibilities? is, in this context, a reality.

The court also finds that there’s standing on First Amendment grounds, thanks to the chilling effects of surveillance:

Appellants likewise have standing to assert a First Amendment violation. Appellants contend that their First Amendment associational rights are being violated, both directly and through a ?chilling effect? on clients and donors. The Supreme Court has long recognized that an organization can assert associational privacy rights on behalf of its members, stating that ?[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute . . . a restraint on freedom of association.?

There’s a lot more in the ruling as well, including a clear rejection of the idea that the program and the orders of the FISA court to collect this data are somehow “not reviewable” by the judicial system. The DOJ says that because the court orders are secret, that means there can’t be judicial review. The 2nd Circuit’s response is basically, “you’re really undermining your own case here”:

Upon closer analysis, however, that argument fails. The government has pointed to no affirmative evidence, whether ?clear and convincing? or ?fairly discernible,? that suggests that Congress intended to preclude judicial review. Indeed, the government?s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have. That revelation, of course, came to pass only because of an unprecedented leak of classified information. That Congress may not have anticipated that individuals like appellants, whose communications were targeted by § 215 orders, would become aware of the orders, and thus be in a position to seek judicial review, is not evidence that Congress affirmatively decided to revoke the right to judicial review otherwise provided by the APA in the event the orders were publicly revealed.

And then there’s this lovely line:

In short, the government relies on bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence…

Hey, DOJ/NSA: this court isn’t buying what you’re selling.

Next up, the DOJ trots out a standard talking point, about how collecting all this info is just like a grand jury subpoena. Once again, the court points out that’s ridiculous, focusing on the fact that Section 215 requires the information to be “relevant.” We’ve discussed in the past how the NSA has reinterpreted relevance to mean “might be useful at some point in the future.” And the court explicitly rejects that:

The records demanded are all?encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry. Rather, the parties ask the Court to decide whether § 215 authorizes the ?creation of a historical repository of information that bulk aggregation of the metadata allows,?…. because bulk collection to create such a repository is ?necessary to the application of certain analytic techniques,? … That is not the language in which grand jury subpoenas are traditionally discussed.

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.

And further on that point:

The government has not attempted to identify to what particular ?authorized investigation? the bulk metadata of virtually all Americans? phone calls are relevant…. Put another way, the government effectively argues that there is only one enormous ?anti?terrorism? investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.

And, as the court notes, that doesn’t just redefine “relevant” — it reads it right out of the law:

The government?s approach essentially reads the ?authorized investigation? language out of the statute. Indeed, the government?s information?gathering under the telephone metadata program is inconsistent with the very concept of an ?investigation.? To ?investigate? something, according to the Oxford English Dictionary, is ?[t]o search or inquire into; to examine (a matter) systematically or in detail; to make an inquiry or examination into.? 8 Oxford English Dictionary 47 (2d ed. 2001). Section 215?s language thus contemplates the specificity of a particular investigation ? not the general counterterrorism intelligence efforts of the United States government. But the records in question here are not sought, at least in the first instance, because the government plans to examine them in connection with a ?systematic examination? of anything at all; the records are simply stored and kept in reserve until such time as some particular investigation, in the sense in which that word is traditionally used in connection with legislative, administrative, or criminal inquiries, is undertaken. Only at that point are any of the stored records examined. The records sought are not even asserted to be relevant to any ongoing ?systematic examination? of any particular suspect, incident, or group; they are relevant, in the government?s view, because there might at some future point be a need or desire to search them in connection with a hypothetical future inquiry.

The court regularly cites the PCLOB report that found the Section 215 program unconstitutional, and seems to have clearly understood the deeper issues with this program. While it falls short of ordering the program to stop (noting that the program is set to end at the end of this month anyway), this ruling is pretty suggestive of how the court might eventually rule on the program’s constitutionality if it returns.

Oh, and how can we leave out this tidbit on “secret law”:

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.

And it totally rejects the usual NSA defenders’ stance that it wasn’t secret because members of Congress could have found out about the program if they took significant steps. Not enough, the court says:

In 2010, the Senate and House Intelligence Committees requested that the Executive Branch provide all members of Congress access to information about the program before the reauthorization vote. In response, the Executive Branch provided the Intelligence Committee chairs with a classified paper on the program, which was then made available to members of Congress. That availability, however, was limited in a number of ways. First, the briefing papers could only be viewed in secure locations, for a limited time period and under a number of restrictions…. The government does not dispute appellants? assertion that members of Congress could not bring staff with them when they went to read the briefing papers, nor discuss the program with their staff. And, of course, no public debate on the program took place. In 2011, briefing papers were also provided to the Intelligence Committees, but only the Senate Committee shared the papers with other members of that body who were not committee members. The House Intelligence Committee did not share the papers at all with non?members, leaving the non?committee Representatives in the dark as to the program.

We had highlighted Rep. Mike Rogers (then head of the House Intelligence Committee) for failing to make the documents available, and it’s nice to see the court pick up on that.

While this doesn’t go all the way to ending the program, this is a huge ruling from an important appeals court. This issue will still have to play out for years in other courts and eventually the Supreme Court, but today’s ruling by this court is a huge victory for the 4th Amendment, even if the court didn’t go all the way there in its analysis.

Filed Under: , , , , , , , , , , ,
Companies: aclu

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Huge Win: Appeals Court Says NSA's Bulk Phone Records Collection Not Actually Authorized By PATRIOT Act”

Subscribe: RSS Leave a comment
Anonymous Coward says:

Still fuck those guys!

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.

To these bastards the 4th means nothing.

The Fully Informed Juror movement needs a much larger voice, because all that is left after that is for everyone to start shooting.

Anonymous Coward says:

Re: Still fuck those guys!

I think what they really mean is the current law that was passed by Congress doesn’t authorize this like they think it does so, we don’t even need to get to the 4th amendment question. IF Congress does decide to put up a law that does authorize this, they can and if that happens, we then can look at if that law is Constitutional or not. They clearly indicate in the discussion about the 4th amendment prohibiting not only unreasonable searches but unreasonable seizures as well where they state that this would qualify as a seizure, that IF Congress WERE to actually authorize this, when they did that would likely be unconstitutional as well.

Anonymous Coward says:

Re: Re: Still fuck those guys!

I guess it is the wording they used that just irks me on it.

But yea, I am definitely happy about the ruling, just pissing an moaning over the wording.

The real test will be if someone actually does something about it or if they just said… hey you are breaking the law, but we are not actually going to stop you.

John Thacker (profile) says:

Re: They're an Appeals Court, not SCOTUS

They had a lot of dicta in there implying that they believe it violates the 4th and wanted to discuss the Constitutional issues, but unfortunately it’s not their role to decide that, it’s the Supreme Court’s.

They did their job. I wish they had gone further, but I’m not surprised.

Anonymous Coward says:

Re: Re: They're an Appeals Court, not SCOTUS

Oh it’s also their job to determine constitutionality as well. It’s just that the courts in general try not to make rulings that set constitutional precedents that could screw with future interpretations one way or the other if they don’t have to. If they can make a determination based on something else they usually will. SCOTUS does the same thing.

John Thacker (profile) says:

Re: Uh oh.

Well, the first thing that the government can do is just insist on tweaks to the paragraph 215 re-authorization bill that legalizes it. The Obama Administration may ask for that, which may not mean keeping 215, but “clarifying” other parts of the bill and authorize the program through a different authority. Whack-a-mole.

Anonymous Coward says:

Re: Re: Uh oh.

The courts already established that the collection of this data violates the Constitution. Therefore congress cannot simply pass new laws to make it legal. Making this legal would require a constitutional amendment that nullifies some of the bill of rights.

“[A] violation of the [Fourth] Amendment is fully accomplished at the time of an unreasonable governmental intrusion.” United States v. Verdugo‐Urquidez, 494 U.S. 259, 264 (1990) (internal quotation marks omitted). If the telephone metadata program is unlawful, appellants have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by a favorable ruling.

Anonymous Anonymous Coward says:

Limited or Temporary

Does this mean that the NSA will have to stop collecting in the territory covered by the Second Circuit, but continue collecting in all other areas until a) other Circuits agree or b) this case gets to the Supreme Court (which is unlikely unless other Circuits have different rulings) when I have no doubt are gutless wonders on the Supreme Court will let the NSA continue their collections with some really ‘out of the place where the sun does not shine’ excuses?

Please let me be pleasantly surprised.

James Burkhardt (profile) says:

Re: Limited or Temporary

While it falls short of ordering the program to stop (noting that the program is set to end at the end of this month anyway), this ruling is pretty suggestive of how the court might eventually rule on the program’s constitutionality if it returns.

They did not order a halt to the program, unfortunately.

John Fenderson (profile) says:

Re: Re: Limited or Temporary

That’s right. What has happened is that the appeals court cited what they though was wrong with the lower court’s reasoning and have sent it back to the lower court for them to reconsider.

Operationally, nothing will change until the lower court issues a new ruling taking into account the appeals court’s comments.

Anonymous Coward says:

As much as I love everything about this ruling and it’s possible contribution to ending the metadata collection program, the big deals for me were the clarification on standing and the definition of relevant. This court knocked down the government’s main defense against being challenged on this topic and others like it due to plaintiffs lacking standing. It also threw out the government’s ridiculous definition of relevant and replaced it with the real one. Several big steps forward today and I’m thrilled.

John Fenderson (profile) says:

Re: Re:

Yes, I think that the clarification of standing was the huge win. The standing issue has been the main way that the government has been able to avoid having the courts hear these cases.

A close runner up, for me, is the clarification of search and seizure. I’m glad that a court has finally acknowledged that compiling all that data plainly constitutes a seizure, and their use of that data plainly constitutes a search.

DannyB (profile) says:

Re: Re: right up to to The Supreme Court

They’ll win. You have your law. The NSA has their spy on everyone capabilities. The CIA has their torturers, secret prisons and dirty tricks.

“Here i stand with my bayonet, there you stand with your laws. We’ll see which prevails” — name withheld in order not to Godwin this thread.

Tom (profile) says:

Encouraging news, but the fight is by no means over

This was a really needed pick-me-up and injection of hope for humanity just when things looked their bleakest. Long live the fighters.

Personally, I won’t sleep soundly until I see the NSA’s data centers bulldozed on the evening news. There’s no reason to believe they won’t simply continue collecting everything even when it’s deemed illegal.

kenichi tanaka (profile) says:

Much as I hope this ruling stands, I doubt that this ruling from the appeals court will stand. The ruling is going to end up getting struck down because the government will appeal the decision and a higher appellate court will either strike down that ruling or if it gets to the U.S. Supreme Court, they’ll undoubtedly rule in favor of the government, who, rarely, rules against President Obama.

Anonymous Coward says:

what other metadata

This phone case is interesting, but I hope it also has application to everything else that is being collected under 215. Especially when it comes to international communication, less and less is being done through classic telephone services. More and more is done through voip, email, skype, facetime, etc.
Chris Soghoian recently highlighted that the bulk telephony collection only accounts for 5 out of the previous years 180 215 requests. We still have no clue what other abuses may be occurring.

Ambrellite (profile) says:


A thorough, legally rigorous ruling, the likes of which are far too rare when the government’s national security programs are involved. It begs the question: what prevented many other judges from noticing these fatal flaws in the government’s arguments?

That’s the great value of these rulings. Laymen may justly complain, but judges are the stewards of jurisprudence, and when some finally decide to confront the obvious, the rest are compelled to answer why they couldn’t see it.

Agonistes says:

Unfortunately, in my case, it’s hard to invest any hope or trust in anything that comes out of our system of higher government involving this subject. Moreover, even if I did have a bit of hope that all of this represented an actual shift in philosophy and execution of surveillance and a newfound respect for our rights…I can’t even fathom the vast extent that would need to be gone to to hold the agencies and representatives responsible for me to think this was all sincere and not just a colossal multi-branch “limited hangout” operation.

Pronounce (profile) says:

I wish it were that simple and straightforward

The U.S. government isn’t so easily thwarted (or morally burdened) by truth and legality.

For as long I can remember our government, in general, behaves as if the law of the land applies to majority, but not to them. (The power wielded by Washington, and to a lesser degree local governments, have create an impression of elitism among the populis.)

The exception to this is when the swell of public opinion causes the powers that be to fear for their lives (think agency funding). Then they find a scapegoat to sacrifice which appeases the public. But they don’t change their ways and as soon as the flurry of concern dies down they just go back to doing that they always do.

kenichi tanaka (profile) says:

That didn’t take long. Like I said in my comment above, the government is reviewing the court ruling and may end up appealing the decision:

U.S. Attorney General Loretta Lynch said on Thursday the Department of Justice was reviewing a court decision that revived a challenge to a controversial National Security Agency program that collected the records of millions of Americans’ phone calls.

“We are reviewing that decision,” Lynch said at a Senate budget hearing.

She said the collection was a “vital tool in our national security” and that she was not aware of any privacy violations under the revised program.

James Burkhardt (profile) says:

Re: Re:

Its not unsurprising. Mike himself said this is not the end and it will have to go through other courts in his closing paragraph.

This issue will still have to play out for years in other courts and eventually the Supreme Court, but today’s ruling by this court is a huge victory for the 4th Amendment, even if the court didn’t go all the way there in its analysis.

Whether your doom and gloom comes to pass is the real question.

kenichi tanaka (profile) says:

I’m no fan of our government and I’m also no fan of the politicians or agencies that are supposed to be managing our country. But, some courts, who routinely rule against the government find their decisions being overturned by other courts who are friendly to the Obama Administration. The U.S. Supreme Court is no different.

The U.S. Supreme Court are nothing more than lapdogs for President Obama and when ti concerns decisions that limit what the president can do, the Supreme Court routinely hands down decisions that benefit Obama and his corrupt organization.

I’ve rarely heard of an instance where the Supreme Court has ruled against Obama.

nasch (profile) says:

Re: Re:

I’ve rarely heard of an instance where the Supreme Court has ruled against Obama.

I don’t know if you’re still watching this, but Ted Cruz has found some for you:

I didn’t review all of them, but that’s 20 unanimous decisions against the Obama administration, which he claims is more than W. Bush or Clinton. That doesn’t even count split decisions, so I think you have a case of confirmation bias.

FM Hilton (profile) says:

Good and bad news

Absolutely wonderful ruling-and about time someone in the court system did not bend over and kiss the NSA’s ass about standing, legality and constitutionality.

All that being said, it’s still gone back to the lower court, and it will bounce back and forth between courts for the next decade.

It’d be nice if we could just get the damned program shut down, but you know it’s not going to. The government has too much invested in it to do so, and they’ll just ignore the court opinions until forced to do so.

The Supreme Court will only take a case like this when 2 or more courts have ruled in different ways on the same line, and so far, most of them (except the 2nd, of course) have toed the government’s line all the way:

“State Secrets, Inc”.

Just because a court says it’s illegal doesn’t mean the practice is stopped right then and there.

I think it would only stop if an Executive Order from the President himself would do it.

Let’s not kid ourselves. There’s nobody in Washington that brave to take on the NSA. Nobody.

And yes, indeed: Ed Snowden was and will always be a hero.

He’s the only one who is. Look where he ended up.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...