On May 7, 2015, the Court of Appeals for the Second Circuit ruled on the legality of the National Security Agency’s (NSA) bulk collection of telephone metadata. In a unanimous opinion, the court ruled that the NSA’s bulk collection of telephone records exceeds the authority granted under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision.
The Second Circuit begins by recognizing that while telephone metadata does not reveal the content of the calls, this fact “does not vitiate the privacy concerns arising out of the government’s bulk collection of such data’ which can reveal a “startling amount of detailed information.” Telephone metadata
might reveal that an individual is: a victim of domestic violence or rape; a veteran; suffering from an addition of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual’s social status, or whether and when he or she is involved in intimate relationships.
The court also notes that the more metadata collected, the more it can reveal private information.
The court then turned to the facts of the case and summarized the background of the NSA’s bulk collection practices. The NSA has conducted bulk collection of telephone metadata under Section 215 since at least May 2006. The government had collected the data and made “queries” on particular phone numbers that it believed to be associated with a foreign terrorist organization, as well as three “hops,” meaning that the contacts of the contacts of contacts of the original number queried were also looked at. In January 2014, the government limited the number of “hops” from three to two. Additionally, the government required a Foreign Intelligence Service Act Court (FISC) to make a determination that a reasonable articulable suspicion standard had been met, rather than allowing designated NSA officials to determine whether this suspicion existed. The Privacy and Civil Liberties Oversight Group concluded in a 2014 report that the NSA’s program “was inconsistent with §215, violated the Electronic Communications Privacy Act, and implicated privacy and First Amendment concerns.”
After finding that the plaintiffs in the case had standing and the court was not precluded from hearing the case, the Second Circuit turned to the merits of the case and focused on the argument that the program exceeded the authority granted to the government by Section 215.
Section 215 permits the government to apply for “an order requiring the production of any tangible things” provided that they are “relevant to an authorized investigation (other than a threat assessment) . . . to protect against international terrorism or clandestine intelligence activities.” The Second Circuit ruled that while Section 215 “sweeps broadly,” the NSA practices ignore the provision’s statutory limits.
First, while the Second Circuit agreed that the “relevance” standard is generous and Section 215’s use of the term is analogous with the term “relevance” used in the context of a grand jury subpoena, this term is not without its limits. With the NSA’s current bulk collection practices, “The records demanded are all-encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry.” The government argued that the records are “relevant” because they may allow the NSA to identify information that is relevant in the future, but “such an expansive concept of ‘relevance’ is unprecedented and unwarranted.” The court summarizes the government’s argument 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 Second Circuit points out that warrants and subpoenas for other programs are limited to particular individuals or corporations under investigation as well as specific time periods in stark contrast to the NSA’s program which do not have similar limits:
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 Second Circuit further notes that term relevant “does not exist in the abstract” and that “§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.” Instead, it applies only to documents “relevant to an authorized investigation.” Allowing the NSA’s practices to proceed would “require a drastic expansion of the term ‘relevance.’”
Section 215 not only limits collections to what is relevant to an authorized investigation, but also provides that such investigation must not be a “threat assessment.” Thus, the court states, “Congress clearly meant to prevent §215 orders from being issued where the FBI, without any particular, defined information that would permit the initiation of even a preliminary investigation sought to conduct an inquiry to identify a potential threat in advance.” The NSA’s practices are “‘irreconcilable with the statute’s plain text.’”
Turning to the argument that Congress “ratified” the NSA’s practices by reauthorizing Section 215 in 2010 and 2011, the court noted that “Congressional inaction is already a tenuous basis upon which to infer much at all, even where a court’s or agency’s interpretation is fully accessible to the public . . .But here, far from the ordinarily publicly accessible judicial or administrative opinions that the presumption contemplates, no FISC opinions authorizing the program were made public prior to 2013.” Thus, “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.” The Second Circuit rejected the argument that Congress “ratified” the bulk collection practices because “these circumstances would ignore reality . . . it is a far stretch to say that Congress was aware of the FISC’s legal interpretation of §215 when it reauthorized the statute in 2010 and 2011.”
Finding that the program was not permitted under Section 215, the Second Circuit declined to rule on whether the NSA’s bulk collection also violated the Fourth Amendment. The court does, however, point to the “seriousness of the constitutional concerns.” It also notes that Congress has been debating the program and that a new version of the USA FREEDOM Act has been introduced into the U.S. House of Representatives and Senate but, “we do not purport to express any view on the constitutionality of any alternative version of the program.”