The FISC’s dismissal of statutory and constitutional arguments against the interim reauthorization of bulk collection

In response to the government’s request of June 2, 2015,  FISC Judge Michael W. Mosman issued a Primary Order on June 29 reauthorizing the NSA’s bulk telephony metadata program until August 28, 2015. The order was accompanied by an Opinion rejecting statutory and constitutional challenges to continuing the program.

Requests to intervene and to file amicus briefs

As a preliminary matter, Judge Mosman rejected Freedom Works, Inc. and Kenneth T. Cuccinelli, II’s request to intervene as parties in the case. The Court noted that Freedom Works was a plaintiff and Mr. Cuccinelli was plaintiffs’ counsel in the pending challenge to the NSA telephony metadata program in Paul v. Obama, filed in the D.C. District Court on March 26, 2014. Further, the issues in the District Court case substantially overlapped those, including the question of standing, that the FISC would face if Freedom Works and Mr. Cuccinnelli intervened. Accordingly, Judge Mosman refused to allow intervention on grounds of comity.

By contrast, on the basis of Section 401 of the USA Freedom Act’s amendment of 50 US.C. 1803(i)(2)(B) to allow the FISC to grant leave to file amicus briefs, Freedom Works and Mr. Cuccinelli were appointed amicus curiae.  In addition, Judge Mosman decided to consider the amicus brief that The Center for National Security Studies had filed in another docket on April 3, 2014.

The rejection of statutory challenges

Judge Mosman rejected The Center for National Security Studies’ statutory arguments, however, despite acknowledging that in ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015), the United States Court of Appeals for the Second Circuit had held that the NSA telephony metadata program collected records too broadly to satisfy the relevance requirement of 50 U.S.C. Sec. 1861. While claiming that Second Circuit rulings were not binding on the FISC, Judge Mosman asserted that he was “by no means writing on a blank slate,” but instead adhering to repeated FISC approval of the program. At 12. Invoking FISC Judge Eagan’s Opinion of August 29, 2013, the judge criticized the Second Circuit for misunderstanding how the program operated and misinterpreting Sec. 1861’s relevance requirement. Crucially, he also reasoned that by authorizing interim bulk collection in the USA Freedom Act, Congress had mooted the Second Circuit’s holding that the NSA telephony metadata program was not authorized by statute. “[T]he Second Circuit would not countenance so broad a collection of records or so expansive an interpretation of relevance without a clearer statement of Congressional intent. …[I]n the USA Freedom Act, Congress – with full knowledge and after extensive debate of this program and its legal underpinnings – permitted the continuation of this program until November 29, 2015, albeit no longer. Congressional approval of the implementation of this program until that date, and therefore of the conception of relevance on which it depends, has been clearly manifested.” At 18-19.

The rejection of Fourth Amendment challenges

Judge Mosman also followed previous FISC opinions in holding that, under Smith v. Maryland, 442 U.S. 735 (1979), the telephony metadata program did not count as a search to which Fourth Amendment protections applied. Against the movants’ attempt to distinguish Smith away on the ground that the NSA program collected location information, the judge cited ACLU v. Clapper, 785 F.3d 787, 797 n. 3 (2d Cir. 2015), very arguably misleadingly, for the proposition that “a ‘trunk identifier’ provides only information about how a call is routed through the telephone network and reveals only general information about a party’s location.” Others of the movants’ arguments against the analogy with Smith were dismissed on the ground that they were “reminiscent of the reasoning in Klayman, which [FISC] Judge Collyer previously considered and rejected.” At 20.


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