ACLU v. Clapper -- Statutory and Constitutional Limits On Mass Surveillance

-- By JasonRosenbaum - 09 May 2015

On May 7, 2015, the Second Circuit decided that the NSA metadata program was not authorized by § 215 of the PATRIOT Act in an opinion written by Judge Gerard E. Lynch. The opinion, while only applying to telephone metadata programs under a statutory framework better suited for protecting the privacy of telephone communications than electronic communications, may positively impact future challenges to other mass surveillance programs, particularly "upstream" surveillance.

Summary of ACLU v. Clapper

The District Court for the Southern District of New York granted the NSA's motion to dismiss, holding that § 215 of the PATRIOT Act impliedly precludes judicial review; that the ACLU's statutory claims regarding the scope of § 215 would fail on the merits; and that § 215 does not violate the Fourth or First Amendments. Reversing the District Court's motion to dismiss, the Second Circuit Court held that § 215 does not preclude judicial review, and that the telephone metadata program is not authorized by § 215.

Background

Judge Lynch begins his opinion by comparing today's political climate regarding warrantless telephone surveillance with that of the early 1970s. He notes that the Supreme Court's United States v. Keith decision, which struck down certain warrantless surveillance procedures as illegal, combined with the findings of the Senate Church Committee, prompted Congress in 1978 to enact the Foreign Intelligence Surveillance Act. This Act, according to Judge Lynch, was "comprehensive legislation aimed at curtailing abuses and delineating the procedures to be employed in conducting surveillance in foreign intelligence investigations." Lynch proceeds to draw a picture of the NSA telephone metadata program that bears striking similarities to the warrantless wiretapping programs that led to FISA, emphasizing the vast amounts of information that an intelligence agency can glean from metadata, and that the NSA gathers all telephone metadata in the United States regardless of its relevance to counterterrorism investigations.

Legal Argument

Judge Lynch first argues that § 215 of the PATRIOT Act does not authorize the telephone metadata program. Lynch concedes that, when authorizing § 215, Congress intended to provide government with broad tools to investigate and forestall acts of terrorism, acknowledging that the government may apply for an order requiring the production of "any tangible things" for an investigation. However, while "any tangible thing" can be just about anything, Lynch notes that such things may "only be produced upon a specified factual showing by the government." He argues that, since the metadata records that the NSA demands are "all-encompassing," and the government does not suggest that any of the records sought are relevant to any specific defined inquiry, the telephone metadata program does not meet the § 215 standard that applications for foreign intelligence orders 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)." The government's position that there is only one enormous "anti-terrorism" investigation for which all orders are justified under § 215 is inconsistent with the very concept of an "investigation," according to Lynch. Also, Lynch argues the exception "threat assessment[s]" in § 215 precludes the collection of telephone metadata for anything less than a concrete investigation, and claims that the telephone metadata program is even more remote from a concrete investigation than is a threat assessment.

Next, Lynch argues that the Constitutional issues raised by the ACLU regarding the telephone metadata program, especially the Fourth Amendment claim, are vexing enough to warrant judicial review. Lynch cites a variety of due process cases, including Katz v. United States and United States v. Jones, to argue that Americans could be entitled to due process protections against the collection of their telephone metadata, suggesting that the Smith v. Maryland standard that there is no "legitimate expectation of privacy" in information voluntarily turned over to third parties does not apply to telephone service providers in the twenty-first century.

Potential Impact Of ACLU v. Clapper On Future Mass Surveillance Litigation

Wikimedia has recently brought a similar lawsuit against the NSA and DOJ challenging the US government's "upstream" surveillance program, which intercepts vast amounts of data by tapping internet infrastructure such as undersea cables. Wikimedia's challenge to upstream surveillance is trickier to argue than the ACLU's challenge to telephone mass surveillance in ACLU v. Clipper. However, I believe that the ACLU's success in ACLU v. Clipper offers Wikimedia some hope. Judge Lynch's supportive treatment of the ACLU's Fourth Amendment challenge against telephone metadata surveillance lends credibility to Wikimedia's argument that upstream surveillance, despite being statutorily authorized for the communications of non-American persons, treads on the privacy of American citizens. Also, Judge Lynch's refusal to allow the government to win on its claim that Congress provided intelligence services with unlimited authorization to spy on Americans is indicative of a willingness by courts to interpret statutes narrowly in order to protect the privacy rights of Americans. Lynch's foray into legislative history is especially promising for the future of the Wikimedia case and similar cases because it is a widely known fact that most Congressmen and Senators who voted for and reauthorized statutes providing for domestic surveillance were unaware of the scope of NSA surveillance programs such as upstream surveillance and PRISM. Therefore, ACLU v. Clapper, should it survive Supreme Court review, should help the cause of affirmative litigants seeking the curtailment of mass surveillance programs.