On May 7th, the Second Circuit finally decided the case of ACLU v. Clapper, ruling that Section 215 of the PATRIOT Act did not authorize the mass collection of metadata from telephone calls made in the United States. The decision was based on the statutory language of Section 215, and the court did not reach the constitutional question of whether the collection program violated the Fourth Amendment.
As a matter of statutory analysis, the court’s ruling was sound. The most significant part of the opinion had to do with the part of Section 215 which states that in order to collect information under this statute, the government must provide the FISA court with “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation….” As the ACLU pointed out, the NSA’s collection of metadata was comprehensive; the agency simply collected all telephone metadata and stored it so that they could access it when they needed it for an investigation. The government put forward a very broad definition of “relevant,” arguing that bulk collection is “relevant” to counterterrorism activities. The court sensible rejected this view, noting that the vast majority of information that the government is collecting is never used in any specific investigation.
Many commentators have dismissed the decision as largely irrelevant, since Section 215 is due to expire on June 1st anyway, and Congress has been actively debating whether to re-authorize it, replace it, or just let it lapse. Professor Orin Kerr called the decision “mostly symbolic.” A former general counsel for the NSA called the opinion a “97-page law review article” whose significance is “close to zero.”
This seems to understate the importance of the opinion. As Senator Rand Paul noted in an article in Time magazine (and as Professor Kerr admits in an addendum to his post), this ruling will obviously affect the current legislative debate about the re-authorization of Section 215. For example, there is a current proposal, called the USA Freedom Act, which would replace Section 215 language with new language that bans bulk collection of telephone metadata but provides new authorization to collect information from phone companies. As Senator Paul notes, the Clapper holding would mean that the Freedom Act, meant to limit the reach of the NSA, would now give the NSA more powers than they currently enjoy under the Second Circuit’s interpretation of Section 215. And the fact that a circuit court has refused to interpret Section 215’s language as broadly as the government requested will surely influence the drafting of future legislation–Congress will be much more careful to delineate exactly what power it wants to give the NSA.
The most interesting question, of course, is: what happens next? Section 215 has already been re-authorized twice before, with little debate–but that was before the Snowden revelations showed the public (and many members of Congress) exactly what the NSA was doing with the statute. The public reaction to the mass collection of telephone metadata–as well as other types of surveillance conducted by the NSA–has been overwhelmingly negative. On the other hand, many people would argue that the threat from international terrorists has not significantly diminished since 2001. Meanwhile, Congress remains gridlocked on almost every issue that comes before it, making any kind of compromise unlikely.
All of this is only a precursor, though, to a more important question: what types of electronic surveillance are permissible under the Fourth Amendment? As we have seen, courts are still struggling with this question. The Second Circuit’s decision does not directly address this issue, but it might force Congress–and future courts–to face the question head on.