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
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
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
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:
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
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:
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.