The Court of Appeals’ Second Opinion in ACLU v. Clapper

ACLU v. Clapper, 14-42–cv, 2015 WL 6516757 (2d Cir. Oct. 29, 2015)

On October 29, 2015, the United States Court of Appeals for the Second Circuit refused to issue a preliminary injunction against the collection and querying of the plaintiffs’ telephone records through November 29, 2015, the end of the 180-day period that the USA Freedom Act set for its prohibition of the NSA’s bulk telephony metadata program to go into effect. Invoking Congress’ establishment of a 180-day interim, the Court held that the plaintiffs’ statutory and Constitutional arguments against the continuation of the NSA program were unlikely to succeed.

Procedural history

On May 7, 2015, in an opinion by Judge Gerard E. Lynch (the “May 7 Opinion”), the Second Circuit held that the NSA’s bulk telephony metadata program (the “Program”) was not authorized under Section 215 of the Patriot Act. 785 F. 3d 787. The Court declined to issue a preliminary injunction, however, on the ground that Section 215 was scheduled to expire on June 1, 2015. After Congress passed the USA Freedom Act on June 2, the Court asked the parties to brief its effects on the case. By the time the Court issued its decision, the FISC had reauthorized the Program until the scheduled end of the 180-day interim on November 29.

The statutory issue

The plaintiffs argued that the USA Freedom Act established a 180-day period during which the government could continue to engage in the activities authorized under Sec. 215 of the Patriot Act. Since, as per Judge Lynch’s May 7 Opinion, Sec. 215 had not authorized the Program, the USA Freedom Act was not properly interpreted to authorize its continuation during the 180-day interim.

To the contrary, in his October 29 opinion, Judge Lynch saw the questions of what Congress had authorized during the 180-day interim and under Section 215 of the Patriot Act as entirely distinct. Relying on both legislative history and the language of the USA Freedom Act as a whole, the judge reasoned that, “While the present Congress cannot tell us what the Congress that passed the Patriot Act intended to authorize, its intent in passing the Freedom Act is clear. The 180–day transition period represents Congress’s considered judgment that there should be time for an orderly transition from the existing program to the new, targeted surveillance program.” 2015 WL 6516757 at *6.

The Constitutional issue

Invoking the brevity of the interim period, Judge Lynch further reasoned that it would not be “prudent” to consider whether the NSA’s bulk collection program violated the First and Fourth Amendments. “The question is not whether Congress may constitutionally authorize this type of bulk data collection indefinitely, but whether Congress may, in dismantling a program of this type, authorize a transitional period with a clear end point.” Id. at *9. Hand in hand with this, the judge uncritically accepted the government’s contention that the interim continuation of the Program bulk was necessary for national security. “An abrupt end to the program would be contrary to the public interest in effective surveillance of terrorist threats, and Congress thus provided a 180–day transition period.” Id.

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