ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015)On May 7, 2015, in an opinion by Judge Gerard E. Lynch, the federal court of appeals for the Second Circuit reversed the dismissal of the plaintiffs’ complaint by Judge Pauley of the Southern District of New York. The Second Circuit held that the telephony metadata program was not authorized by Section 215, but declined to reach the constitutional issues. Despite finding for the plaintiffs on the merits, the Court affirmed the district court’s denial of a preliminary injunction, reasoning that due to Section 215’s scheduled expiration date of June 1, 2015, “the statutory issues on which we rest our decision could become moot (at least as far as the future of the telephone metadata program is concerned), and the constitutional issues appellants continue to press radically altered, by events that will occur in a short time frame.”785 F.3d at 826..
By contrast to the district court’s emphasis on the need to combat terrorism, Judge Lynch began his opinion of May 7, 2015 by discussing FISA’s roots in “concerns that the privacy rights of U.S. citizens had been violated by activities that had been conducted under the rubric of foreign intelligence collection,” and went on to stress the increasing inroads on privacy that technology makes possible. 785 F.3d at 793. his concurrence, Judge Robert D. Sack used the Pentagon Papers case to illustrate how overblown government claims about threats to national security might unwarrantedly endanger fundamental rights.
Judge Lynch’s opinion for the Court
The government argued that the plaintiffs lacked standing to sue because they could not prove that the NSA had either used their telephone numbers to conduct queries or found that their numbers were included in the results of queries. Upholding the district court’s determination that the plaintiffs had standing, the Court of Appeals reasoned that the requisite concrete injury was established by the undisputed fact that the plaintiffs’ records had been collected and maintained in the NSA’s telephony metadata database. Alternatively, the government’s admission that the NSA’s computers needed to search all records in the database in order to identify queried telephone numbers’ contacts was sufficient proof that the plaintiffs had standing.
Departing from both the court below and the court in Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013), the Court of Appeals went on to hold that the plaintiffs’ statutory challenge could be brought under the Administrative Procedure Act (“APA”). Arguing that the APA’s waiver of sovereign immunity was precluded by statute, the government had claimed that under Section 215 and the general scheme of FISA, orders could be challenged only before the FISC and only by recipients, rather than targets. Against this, the Court claimed that a very rigorous standard must be met to show that a statute curtailed the broad right of judicial review established by the APA. Systematically dismissing the government’s arguments, the Court concluded that, “At most, the evidence cited by the government suggests that Congress assumed, in light of the expectation of secrecy, that persons whose information was targeted by a § 215 order would rarely even know of such orders, and therefore that judicial review at the behest of such persons was a non-issue. But such an assumption is a far cry from an unexpressed intention to withdraw rights granted in a generally applicable, explicit statute such as the APA.” 785 F.3d at 811.
Turning to the merits, the Court upheld the plaintiffs’ statutory challenge on the ground that the collection of metadata on all telephone calls made or received in the United States was incompatible with Section 215’s requirement of “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment).” While accepting the government’s position that the relevance requirement of Section 215 was modeled on that for grand jury investigations, the Court found that even the broadest judicial interpretation of relevance in the context of grand jury proceedings was bounded by the subject matter and time of the particular investigation. There were no such bounds, however, in the telephony metadata program; “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.”Id. at 812.. Instead, the government’s theory of relevance was that “a vast amount of [metadata] which does not contain directly ‘relevant’ information … are nonetheless ‘relevant’ because they may allow the NSA, at some unknown time in the future, … to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant.” Id. According to the Court, this “needle in the haystack” theory ignored the statute’s requirement that relevance be demonstrated in regard to a particular “authorized investigation,” and was therefore contrary to the plain meaning of Section 215. In addition, the government’s interpretation ignored Section 215’s requirement that “an authorized investigation” be “other than a threat assessment“ in which “the FBI, without any particular, defined information that would permit the initiation of even a preliminary investigation, [seeks] to conduct an inquiry in order to identify a potential threat in advance.” Id. at 819. In thus rejecting the government’s needle in a haystack argument, the Second Circuit departed from the reasoning in FISC Judge Eagan’s opinion reauthorizing the telephony metadata program.
The Court also departed from FISC Judge McLaughlin by rejecting the government’s contention that by re-enacting Section 215 in 2010 and 2011, Congress ratified the FISC’s interpretation permitting the telephony metadata program. Since the plain language of Section 215 ruled out the FISC’s interpretation, it was impossible for the re-enactment of Section 215 to have ratified that interpretation. More importantly, the Second Circuit reasoned that ratification could not have occurred because the telephony metadata program was kept secret from the public and severe limits were imposed on Congress’ ability to learn of it. “The widespread controversy that developed, in and out of Congress, upon the public disclosure of the program makes clear that this is not a situation in which Congress quietly but knowingly adopted the FISC’s interpretation of § 215 ….” 785 F.3d at 821.
The Court emphasized that its holding that the telephony metadata program was not authorized by statute made it unnecessary to consider the constitutional issues. Also, in refusing to grant a preliminary injunction, the Court reasoned that the constitutional, as well as statutory, issues would be reshaped by Congress’ response to the imminent, scheduled expiration of Section 215 on June 1, 2015. Nonetheless, the Court remarked that the telephony metadata program raised vexing issues about the impact of changes in technology on reasonable expectations of privacy and, hence, on the scope of Fourth Amendment protections. In particular, the Court suggested that Justice Sotomayor’s observation, in United States v. Jones, that the third party doctrine is “ill suited to the digital age” was pertinent to assessing the Fourth Amendment implications of the telephony metadata program. Id. at 824 (citation omitted). Puzzlingly, however, the Court went on to suggest that Congress should play a primary role in assessing the constitutionality of “a program such as this one,” invoking both Congressional expertise on national security and the advantages of the legislative process for coming to understand “the consequences of a world in which individuals can barely function without involuntarily creating metadata that can reveal a great deal of information about them.” Id.
Judge Sack’s concurrence
Despite fully joining Judge Lynch’s opinion, Judge Sack wrote separately to emphasize the institutional duty of courts “to seek to reconcile the never completely reconcilable tension between the individual’s interest in privacy and right to civil liberties and the government’s duty to protect American lives and property.” 785 F.3d 826, 827 (Sack, J., concurring) (footnote omitted). He then dwelt on how the FISC was disadvantaged, relative to other Article III courts, by the absence of public, adversarial proceedings. Going on to detail the beneficial role that counsel for the New York Times had played in the Pentagon Papers case, Judge Sack concluded that, “It may be worth considering that the participation of an adversary to the government at some point in the FISC’s proceedings could similarly provide a significant benefit to that court. The FISC otherwise may be subject to the understandable suspicion that, hearing only from the government, it is likely to be strongly inclined to rule for the government.” Id. at 831. The judge cast doubt, however, on the pertinence of his discussion by “reiterat[ing] that we do not assert any institutional capability to provide, recommend, or in the absence of a case or controversy, pass on the propriety of FISC’s deliberations.” Id. at 832.
Judge Sack ended his concurrence by presenting a stirring quote from Alexander Hamilton in Federalist No. 8 to illustrate that throughout American history, citizens’ rights had been endangered by attempts to protect national security. Adding a caveat, however, he stated that, “We judges have an often critical part to play in resolving these issues, but only by addressing them in individual cases …” Id.
Proceedings after the enactment of the USA Freedom Act
As will be discussed, after the USA Freedom Act was enacted on June 2, 2015, a major issue before both the FISC and the Second Circuit was whether the FISC’s renewal for 180 days of the telephony metadata program in its pre-USA Freedom Act form was authorized by the USA Freedom Act or barred by Judge Lynch’s decision that there was no statutory authorization for the pre-USA Freedom Act version of the telephony metadata program.