The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today, in a thoughtful opinion that is likely to affect Congressional deliberations over the next few weeks, the Second Circuit Court of Appeals held the NSA bulk data collection program is illegal because it is unauthorized under Section 215 of USA Patriot Act. Therefore, it did not reach constitutional issues raised by challengers. Here is a key passage of the decision:
The government's approach essentially reads the "authorized investigation" language out of the statute. Indeed, the government's information‐gathering under the telephone metadata program is inconsistent with the very concept of an "investigation." To "investigate" something, according to the Oxford English Dictionary, is "[t]o search or inquire into; to examine (a matter) systematically or in detail; to make an inquiry or examination into."9 8 Oxford English Dictionary 47 (2d ed. 2001). Section 215's language thus contemplates the specificity of a particular investigation—not the general counterterrorism intelligence efforts of the United States government. But the records in question here are not sought, at least in the first instance, because the government plans to examine them in connection with a "systematic examination" of anything at all; the records are simply stored and kept in reserve until such time as some particular investigation, in the sense in which that word is traditionally used in connection with legislative, administrative, or criminal inquiries, is undertaken. Only at that point are any of the stored records examined. The records sought are not even asserted to be relevant to any on‐ going "systematic examination" of any particular suspect, incident, or group; they are relevant, in the government's view, because there might at some future point be a need or desire to search them in connection with a hypothetical future inquiry.
(Jim Harper and I have been arguing this for a couple years, as you can read here.)
In response to the government's argument that Congress "ratified" its expansive reading of Section 215 when it reauthorized the Act, the Court says that "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."
With respect to the constitutional challenges, the court then observes:
Because we conclude that the challenged program was not authorized by the statute on which the government bases its claim of legal authority, we need not and do not reach these weighty constitutional issues. The seriousness of the constitutional concerns, however, has some bearing on what we hold today, and on the consequences of that holding.
Finally, we are not unmindful that a full debate by Congress of the appropriateness of a program such as that now operated by the government may result in the approval of a program with greater safeguards for privacy, or with other limitations, that are not now in place and that could alter or even moot the issues presented by appellants. . .
The constitutional issues, however, are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary. Ideally, such issues should be resolved by the courts only after such debate, with due respect for any conclusions reached by the coordinate branches of government.
Finally, the court declined to issue a preliminary injunction, and remanded to the District Court to weigh the merits of such an injunction in light of its statutory ruling. But it then noted that the case could well be rendered moot by Congress in the coming weeks:
[G]iven the necessity of congressional action, 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. If Congress decides to authorize the collection of the data desired by the government under conditions identical to those now in place, the program will continue in the future under that authorization. There will be time then to address appellants' constitutional issues, which may be significantly altered by the findings made, and conclusions reached, by the political branches, and to decide what if any relief appellants are entitled to based on our finding that the program as it has operated to date is unlawful. If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised. If Congress fails to reauthorize § 215 itself, or reenacts § 215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end, and once again there will be time to address what if any relief is required in terms of the data already acquired by the government.
This decision should affect the debate over reauthorization of the Patriot Act in the next few weeks. As important as it is, the Second Circuit's reading of § 215 is far from the last word. And Congress may well wish to codify its holding to ensure that bulk date seizures of all our phone, bank, credit card, and medical record for later searches are not authorized by law. But however this legislative debate concludes, today's ruling vindicates some of the arguments that those of us have been making against the NSA's bulk date seizure program.