In May, the Second Circuit Court of Appeals held in ACLU v. Clapper that the federal government exceeded the scope of its authority under the PATRIOT Act through its bulk collection of telephone metadata. This decision represents a significant development in national security law following the Edward Snowden leaks in 2013. Though the decision is largely eclipsed by the lapse of the PATRIOT Act and the passage of the USA Freedom Act, the decision may provide a bellwether for courts’ treatment of bulk surveillance programs.
Clapper arose because of the Edward Snowden leaks, which made public the government’s bulk data collection of Americans. One such leaked document was a government order which required Verizon to turn over all call detail records. It was undisputed in Clapper that other U.S. telephone providers are required to do the same. The government engaged in this bulk metadata collection since 2006.
Telephone metadata includes information such as the length of the call, the telephone number making the call, and the telephone number of the recipient to the call. Metadata does not include content, but it can be used as a proxy for content. The court acknowledged that “[m]etadata can reveal civil, political, or religious affiliations; they can also reveal an individual’s social status, or whether and when he or she is involve in intimate relationships.”
To justify its surveillance activities, the government argued that Section 215 of the PATRIOT Act authorizes the bulk collection of metadata. The PATRIOT Act was passed in the wake of 9/11 to prevent further terrorist attacks. In Section 215, Congress gave the FBI authority to apply to a Foreign Intelligence Surveillance Court for “any tangible things . . . for an investigation to obtain foreign intelligence information . . . .”
The Second Circuit’s interpretation of 215 hinged on the definition of “relevant” in the Act. Pursuant to Section 215, an application to FISC must 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) . . . .” Thus, if “relevant” is broadly construed, the government satisfies the statutory requirement; however, the Second Circuit interpreted the “relevant” more narrowly.
The government argued that “relevant” could be analogized to the standard for relevance in grand juries and administrative subpoenas. The court accepted this analogy, but differed as to its implications. The court reasoned that even relevance standards in the grand jury or administrative subpoena context were not as broad as the collection of all phone metadata. The court described the breadth of the collection as “all-encompassing” and “staggering.” It not only emphasized the quantity of information gathered, but also highlighted the quality of the information. While warrants are limited to specific individuals at specific times, the government’s collection has neither of these constraints.
The court also noted that the plain text of the statute clarifies the context of “relevant.” Relevance is described in the context of an “authorized investigation.” Because the government failed to relate the collection to a specific investigation, the crux of the government’s argument is that there is only one terrorism investigation and all metadata records relate to the investigation. The court concluded that “the language of § 215 is decidedly too ordinary for what the government would have us believe is such an extraordinary departure from any understanding of the term ‘relevant to an authorized investigation.’”
The court also rejected the government’s Congressional ratification argument. The government argued that even if Congress did not originally mean to authorize the government bulk metadata collection, it implicitly ratified this program when it reauthorized the PATRIOT Act in 2010 and 2011. The court reasoned that Congress could not have ratified this interpretation of the statute because most Members of Congress were unaware of the program and the program was unknown to the public prior to the Edward Snowden leaks.
In addition to the statutory argument, the plaintiffs raised 1st Amendment and 4th Amendment arguments. Though the court resolved the case purely on statutory grounds, it acknowledged the lingering constitutional questions which had been raised and described them as “vexing.” It is possible that the issues raised by the collection program may require the Supreme Court to modify its 4th Amendment search doctrine. The Second Circuit’s cautious approach could be a bellwether for other courts’ constitutional analysis of the program.
Following the Second Circuit’s decision, the PATRIOT Act expired at the end of May. Congress responded by passing the USA Freedom Act which is a revised form of the PATRIOT Act. The Freedom Act stops short of authorizing the government’s bulk metadata collection program, yet the debate is ongoing as to whether the Freedom Act correctly balances privacy and security.
Though the statutory framework for anti-terrorism surveillance has changed, Clapper remains a significant national security decision. Unless the PATRIOT Act is repassed (which seems unlikely), Clapper will be the only federal court decision addressing the legality of the government’s bulk collection of metadata. The Second Circuit’s wariness of the bulk collection program could foreshadow other federal courts’ skepticism of the constitutionality of similar surveillance programs disclosed during the Snowden leaks.
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