Technology

Second Circuit Finds NSA’s Bulk Metadata Program Not Authorized by Patriot Act

 NEW YORK — (Mealey’s) A Second Circuit U.S. Court of Appeals panel today found that the National Security Agency’s bulk telephone metadata collection program is not authorized by Section 215 of the USA Patriot Act, reversing a trial court’s dismissal of the lawsuit brought by the American Civil Liberties Union (ACLU) (American Civil Liberties Union, et al. v. James R. Clapper, et al., No. 14-42, 2nd Cir.; See January 2014, Page 6) [an enhanced version of this opinion is available to lexis.com subscribers].

Finding “that the program exceeds the scope of what Congress has authorized,” the panel vacated the U.S. District Court for the Southern District of New York’s dismissal. However, the panel affirmed the lower court’s denial of the ACLU’s request for a preliminary injunction.

FISC Order

The NSA’s data collection program came to public light in June 2013 when British newspaper The Guardian ran a story about a top-secret order served on Verizon Business Network Services Inc. by the Foreign Intelligence Surveillance Court (FISC). The order, citing the provisions of the Patriot Act, required Verizon to turn over to the NSA “on an ongoing daily basis” electronic copies of “all call detail records or ‘telephony metadata’” detailing communications of Verizon customers, both “abroad” or “wholly within the United States, including local telephone calls.”  The metadata was then aggregated into a repository or data bank that can be queried.

The FISC order included a gag order, forbidding Verizon and its personnel from “disclos[ing] to any other person that the FBI or NSA has sought or obtained tangible things under this Order.”

Verizon Customers

The ACLU and affiliated agencies (ACLU, collectively) American Civil Liberties Union Foundation (ACLUF), New York Civil Liberties Union (NYCLU) and New York Civil Liberties Union Foundation (NYCLUF) asserted standing as present and past Verizon customers. The ACLU sued Director of National Intelligence James R. Clapper in June 2013 in the District Court. Also named as defendants were the director of the NSA, secretary of Defense, U.S. attorney general and the director of the FBI.

The ACLU disputed the FISC order’s assertion that Section 215 of the USA Patriot Act authorizes the call tracking. Section 215 requires that business records sought and obtained by the FBI must be “‘relevant’ to an authorized investigation ‘to obtain foreign intelligence information and concerning a United States person or to protect against international terrorism or clandestine intelligence activities.’”  By “acquiring the metadata for every phone call made or received by” Verizon customers “on an ongoing daily basis,” the government has exceeded the authority granted under Section 215, the ACLU asserted. The ACLU also noted that there is no procedure in place for it or other Verizon customers to challenge the order in the FISC.

Dismissal Granted

The ACLU sought a declaration that the mass call tracking program exceeds the authority granted by Section 215 and, as a result, the Administrative Procedure Act (APA). It also asked the court for declarations that the program violates the First and Fourth Amendments.

Additionally, the ACLU sought a permanent injunction against any such future tracking and an order for the participating government agencies “to purge from their possession all of the call records of [the ACLU’s] communications in their possession.”  The ACLU also moved for a preliminary injunction to halt the NSA’s activities during the pendency of the present case.

In December 2013, Judge William H. Pauley III granted the government’s motion to dismiss. Judge Pauley found that the ACLU’s suit was precluded under the statutory scheme of the Patriot Act, holding that Section 215 impliedly precludes judicial review. The judge also held that the NSA’s activities did not violate the Fourth or First Amendment to the U.S. Constitution. Judge Pauley denied the ACLU’s injunction motion. He also said that even if the ACLU’s claims were not precluded, they would still fail because the organization did not establish that it is likely to succeed on the merits. The ACLU appealed to the Second Circuit.

Standing

The panel compared and contrasted the situations surrounding the present case with those in United States v. U.S. District Court for the Eastern District of Michigan (Keith), 407 U.S. 297, 320 (1972) [enhanced version]. In Keith, the U.S. “Supreme Court struck down certain warrantless surveillance procedures that the government had argued were lawful as an exercise of the President’s power to protect national security,” the panel said.

The panel noted that Section 215 permits the director of the FBI or his designee to apply “for an order requiring the production of any tangible things . . . for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”

First, the panel found that the ACLU has standing to sue as a Verizon customer, asserting an unreasonable seizure of telephone metadata under the Fourth Amendment. It is undisputed that the ACLU’s metadata has been collected by the NSA, the panel said, noting the government’s admission of such collection activities. The government has also admitted, the panel said, that database queries include a “search of all of the material stored . . . to identify records that match the search term,” the panel said, which necessarily includes a search of the ACLU’s records. The panel also found that the ACLU has standing to assert a First Amendment challenge based on the “chilling effect” the NSA’s activities purportedly have on its associational rights with clients and donors.

Judicial Review

Citing Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984) [enhanced version], the government argued that Section 215’s procedure for judicial review before FISA, which is provided to a Section 215 order recipient, “evinces Congressional intent to limit judicial review” of the method. The panel disagreed, finding that the government failed to demonstrate “by clear and convincing or ‘discernible’ evidence that Congress intended to preclude review in these particular circumstances.” 

Section 215’s secrecy measures suggest that Congress did not anticipate a situation where targets of Section 215 orders would become aware of them as they have now, thanks to a leak of classified information. Thus, the panel found no evidence that the APA precludes judicial review. The panel also found Block to be distinguishable.

The government also argued that Congress must have intended to preclude judicial review because otherwise “a vast number of potential” lawsuits could be filed by any company receiving a Section 215 order, “severely disrupt[ing]” the government’s “intelligence gathering for counter-terrorism efforts.”  This assumes, however, that Congress contemplated bulk metadata collection, the panel said.

The panel found that “the government relies on bits and shards of inapplicable statutes, inconclusive legislative history, and inference from silence in an effort to find an implied revocation of the APA’s authorization of challenges to government actions.”

Relevant Information

The government argued that although most of the collected metadata is not directly relevant to counterterrorism, the data as a whole is relevant because the NSA might find relevant data within the database at some point. The panel held that “such an expansive concept of ‘relevance’ is unprecedented and unwarranted.”  The panel found it significant that “the case law in analogous contexts’ [did] not involve data acquisition on the scale of the telephony metadata collection.”  By contrast, the panel noted that “[s]earch warrants and document subpoenas typically seek the records of a particular individual or corporation . . . and cover particular time periods,” unlike the orders at issue here. Thus, the panel rejected the government’s comparison to the permissive standards for grand jury subpoenas.

Section “215 does not permit an investigative demand for any information relevant to fighting the war on terror, or anything relevant to whatever the government might want to know,” the panel said. “It permits demands for documents ‘relevant to an authorized investigation,’” the panel said, stating that “[t]he government has not attempted to identify to what particular ‘authorized investigation’ the bulk metadata of virtually all Americans’ phone calls are relevant.”  The government essentially argues that “there is only one enormous ‘anti-terrorism’ investigation,” the panel said, which “essentially reads the ‘authorized investigation’ language out of the statute.” 

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” the panel said. If such collection is actually necessary for national security needs, the panel said “such a momentous decision” would likely “be preceded by substantial debate, and expressed in unmistakable language,” which has not occurred here. Congressional approval of such activities would be explicit, not implicit, the panel said. “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.”  Thus, the panel held “that the text of § 215 cannot bear the weight the government asks us to assign it, and that it does not authorize the telephone metadata program.” 

Constitutional Claims

Turning to the ACLU’s Fourth Amendment claim surrounding the NSA’s warrantless seizure of metadata, the panel noted the government’s argument that the ACLU has no privacy rights in the phone records. The panel stated that this “touches on an issue on which the Supreme Court’s jurisprudence is in some turmoil.” 

Per Smith v. Maryland, 442 U.S. 735, 743-44 (1979) [enhanced version], the panel said that “individuals have no ‘legitimate expectation of privacy in information [they] voluntarily turned over to third parties.’”  The ACLU argued that “modern technology requires revisitation of the underpinnings of the third-party records doctrine as applied to telephone metadata,” pointing to United States v. Jones, 132 S.Ct. 945 (2012) [enhanced version] and the “reasonableness” test of Katz v. United States, 389 U.S. 347 (1967) [enhanced version].

Having already deemed the metadata program unauthorized by Section 15, the panel said it does not need to “reach these weighty constitutional issues.”  However, the panel stated that “[a] congressional judgment as to what is ‘reasonable’ under current circumstances would carry weight . . . 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 . . . 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.” 

Panel And Counsel

The panel comprised Circuit Judges Robert D. Sack and Gerard E. Lynch, with U.S. Judge Vernon S. Broderick of the Southern District of New York sitting by designation.

The ACLU is represented by NYCLUF’s Arthur N. Bisenberg and Christopher T. Dunn, and the ACLUF’s Jameel Jaffer, Alex Abdo, Brett M. Kaufman, Patrick C. Toomey and Catherine Crump, all in New York.

The government is represented by U.S. Attorney Preet Bharara and Assistant U.S. Attorneys David S. Jones, John D. Clopper and Emily E. Daughtry of the U. S. Attorney’s Office for the Southern District of New York in New York and Assistant Attorney General Stuart F. Delery and attorneys Douglas N. Letter, H. Thomas Byron III and Henry C. Whitaker of the U.S. Department of Justice Civil Division in Washington, D.C.

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