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NSA’s ‘Collect It All’ Program Ruled Illegal by Appeals Court

  • May 10, 2015
  • Clayton Rice, Q.C.

In my post titled Privacy and Telephony Metadata dated October 2, 2014, I concluded with reference to ACLU v. Clapper in which the U.S. Court of Appeals, Second Circuit, reserved its decision on September 2, 2014. The three-judge panel released their ruling (Docket No. 14-42-cv) on May 7, 2014, concluding that the NSA’s bulk collection of telephone metadata is not authorized by s. 215 of the Patriot Act. Among the issues addressed in the 97 page opinion, of particular interest to privacy advocates are the preliminary ruling on standing, the analysis of s. 215 and the decision not to decide the Fourth Amendment issue. The opinion is therefore important not only for what it decided but for what it does not decide and is, in the final analysis, a classic case of judicial restraint.

Before moving to the opinion itself, there is merit in setting out the text of the statute at the heart of the controversy. The current version of s. 215 of the Patriot Act allows the Director of the FBI or his designee to:

“…make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”

In its current form, the provision requires such an application to include:

“…a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) of this section to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”

I will begin with the ruling on standing. The government argued that the appellants lacked standing because they had not demonstrated that any of the metadata associated with them had been or will be actually reviewed by the government and they had not identified an injury that is sufficiently concrete or imminent. The argument was important because of the constitutional limitation of federal court jurisdiction to actual cases or controversies. Standing under the Constitution “requires that an injury be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favourable ruling.” In essence, the government argued that the appellants had only shown a “speculative prospect” that their telephone numbers would ever be used as a selector or query, or be included in the results of queries of, the telephony metadata. [See: Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010).]

Judge Gerard E. Lynch concluded that the government’s argument misapprehended what is required to establish standing in a case such as this one, at pp. 27-28:

“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 government 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 favourable ruling.”

Judge Lynch went on to further conclude, at pp. 29 and 32, that the “speculative chain of possibilities” was “a reality.” The appellants’ records were targeted for seizure by the government; the government used the statute to effect the seizure; the orders were approved by the FISC; and, the records were collected. When the appellants’ metadata was collected, its members’ privacy interests were implicated and any potential “chilling effect” was created at that point.

The appellants first argument, characterized by Judge Lynch as “simple and straightforward”, was that the program was not authorized by s. 215 of the Patriot Act. Judge Lynch summarized the arguments and the court’s opinion as follows, at pp. 59-61:

“…[T]he 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.

The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here. The government admitted below that the case law in analogous contexts “d[id] not involve data acquisition on the scale of the telephony metadata collection.” ACLU v. Clapper, No. 13 Civ. 3994 (S.D.N.Y. Aug. 26, 2013), ECF No. 33 (Mem. of Law of Defs. in Supp. of Mot. to Dismiss) at 24. That concession is well taken. As noted above, if the orders challenged by appellants do not require the collection of metadata regarding every telephone call made or received in the United States (a point asserted by appellants and at least nominally contested by the government), they appear to come very close to doing so. The sheer volume of information sought is staggering; while search warrants and subpoenas for business records may encompass large volumes of paper documents or electronic data, the most expansive of such evidentiary demands are dwarfed by the volume of records obtained pursuant to the orders in question here.

Moreover, the distinction is not merely one of quantity – however vast the quantitative difference – but also of quality. Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred. The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. 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.”

The government also argued that the metadata was relevant to counterterrorism investigations without identifying any specific investigations to which the bulk collection was relevant – an approach that boils down to the proposition that all telephone records are relevant to all international terrorism investigations. Judge Lynch construed the government’s position this way, at p. 67: “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. The government’s approach essentially reads the ‘authorized investigation’ language out of the statute.”

Judge Lynch then went on, at p. 75, to conclude that to allow the government to collect telephone records because they may become relevant in the future even fails the test of permissive relevancy. The statute cannot be interpreted in a way that defies any meaningful limit. “Such a monumental shift in the approach to combating terrorism,” he wrote, “requires a clearer signal from Congress than a recycling of oft-used language long held in similar contexts to mean something far narrower. ‘Congress…does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions – it does not…hide elephants in mouse holes.’ Whitman v. Am. Trucking Ass’ns., 531 U.S. 457, 468 (2001).” He then reached the court’s ultimate conclusion, at p. 82, that the text of the statute “cannot bear the weight the government asks us to assign to it.”

Having decided in favour of the appellants on the first argument, it was not necessary to decide the Fourth Amendment question. Nevertheless, the court did not “turn away” from the significance of the high-stakes privacy issue as Judge Lynch observed, at pp. 86, 89-90:

“Appellants argument involves one of the most difficult issues in Fourth Amendment jurisprudence: the extent to which modern technology alters our traditional expectations of privacy. On the one hand, the very notion of an individual’s expectation of privacy, considered in Katz a key component of the rights protected by the Fourth Amendment, may seem quaint in a world in which technology makes it possible for individuals and businesses (to say nothing of the government) to observe acts of individuals once regarded as protected from public view. On the other hand, rules that permit the government to obtain records and other information that consumers have shared with businesses without a warrant seem much more threatening as the extent of such information grows.

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.”

It is important to emphasize two more take-aways. First, although the court found the program to be illegal, it did not order that it be immediately ended. Section 215 is scheduled to expire on June 1, 2015, and Judge Lynch noted at p. 95 that “[a]llowing [it] to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on appellants’ privacy than they faced at the time this litigation began.” Second, if Congress devised a program like the NSA’s, the court suggested that it might be inclined to find it legal, at p. 91: “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…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…”.

With s. 215 scheduled to expire on June 1, 2015, there is considerable speculation that the House will approve the USA Freedom Act that will end the NSA’s bulk collection program, instead permitting such data to be held by telecommunications companies, accessible only with a court order. That will put an end to what Senator Rand Paul has called a surrender of constitutional rights to “opportunistic and overreaching politicians”. (See: Weisman and Steinhauer. Court Ruling on N.S.A.’s Data Collection Jolts Both Defenders and Reformers. New York Times. May 8, 2015; and, Froomkin. NSA’a Bulk Collection Of Phone Records Is Illegal, Appeals Court Says. The Intercept. May 8, 2015.)

While the court’s holding has clawed back the breadth of the NSA’s dragnet program, Canada and France are thundering ahead with expansive state surveillance legislation. Canada’s Bill C-51 was passed by the House of Commons on May 6, 2015. The National Assembly of France passed its controversial surveillance law on May 5, 2015. And the return of the Conservatives in the recent election in Britain has revived talk that they are bringing the “Snoopers’ Charter” with them. (See: Forcese. Bill C-51: They Appear To Know Not What They Have Done. National Security Law Blog, May 7, 2015; Amnesty International. France: Halt rush towards surveillance state. May 4, 2015; and, Whittaker. Privacy set to be biggest casualty of UK election, as “snoopers’ charter’ returns. ZDNet. May 9, 2015).

On May 8, 2015, in an Opinion titled The Spread of Surveillance, The Editorial Board of the New York Times summed it up succinctly:

“The problem comes when greater police powers are not accompanied by precise rules on what those powers can be used for, and by effective judicial and political oversight. History has demonstrated the tendency of secret services to overstep their mandates when left to their own devices.

The French prime minister, Manuel Valls, said he would never ‘infringe on the principles of law and values.’ In Ottawa, the public safety minister, Steven Blaney, called the suggestion that legitimate protest could be targeted as terrorism ‘completely false, and frankly ridiculous.’ Even if that were so, sweeping antiterrorism laws passed by liberal democracies are used as justification for repressive states to make Big Brother even bigger.

The Patriot Act, and the laws in France and Canada, differ in many respects. But they are all what Gerard Biard, the editor in chief of Charlie Hebdo, called  ‘opportunistic laws’ – hastily written to satisfy the urge for exceptional measures against exceptional threats.

In Washington, Congress is moving toward altering the Patriot Act in ways that tighten the scope of permissible surveillance, though still insufficiently. In France and Canada, the bills have to get through their Senates, but passage is deemed certain. All these legislatures should have produced laws that defined the targets of surveillance more carefully, required more transparency, and ensured that judges and elected officials had the last word on what can and cannot be done.”

It is clear that the immediate effect of the court’s decision will be upon the debate in Washington whether to reauthorize s. 215, scale it back or let it expire. In an article titled The courts stood up to NSA mass surveillance. Now Congress must act in the May 9, 2015, edition of The Guardian, Alexander Abdo and Jameel Jaffer of the ACLU argued that the best course would be to let s. 215 expire. Given that the intelligence community has not attempted to make a case that this provision of the law is necessary, that is the right course.

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