The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The U.S. Court of Appeals for the Second Circuit has issued a new opinion declining to reach the Fourth Amendment issues raised by the Section 215 bulk telephony metadata program that is being phased out under the USA Freedom Act. Recall that the Second Circuit had earlier ruled the program unlawful on statutory grounds but did not enjoin it. The Second Circuit's decision helped lead to statutory reform with a transition period from the old program to a new more limited program. With the statute changed, the challengers moved to enjoin the old program during the remainder of the transition period. The new decision declines to issue the injunction and refuses to reach the Fourth Amendment issues raised by the old program.
From the opinion:
The question posed by Appellants invokes one of the most difficult issues of modern jurisprudence: whether modern technology changes traditional and reasonable expectations of privacy. The Fourth Amendment issue raised here, as we noted earlier, is a "dispute [that] touches an issue on which the Supreme Court's jurisprudence is in some turmoil." Whatever we might ultimately conclude about the Constitution's demands in such a novel and contentious area, it is, at a minimum, difficult to conclude that Appellants are "likely to succeed" in arguing that new conditions require a reconsideration of the reach of a long‐established precedent.
The government urges us not to reach these issues, because we should respect the judgment of the democratically elected branches of government to dismantle the program in a way that heeds national security concerns. We agree with the government that we ought not meddle with Congress's considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief. To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless.
Over at Just Security, Steve Vladeck calls this refusal to answer the question "wrong-headed" and "nothing short of feckless." I disagree.
First, I take the court to be saying that if it tried to answer the constitutional question, the program would end and the question would be moot before it issued the opinion. It's better to announce now that the judges are not enjoining the program rather than to waste a month trying to beat the clock knowing that they couldn't make the deadline. And even if the issue weren't moot by the time the circuit ruled, the Supreme Court wouldn't review it on the merits because the program would have ended. Instead, the losing party presumably would go to the Supreme Court and try to get it vacated under Munsingwear, undoing whatever work the Second Circuit put in.
Second, it seems to me that this new opinion is a companion of sorts to the earlier decision ruling the program unlawful. The two opinions go together. Many civil libertarians celebrated the Second Circuit's pragmatic, politically savvy, let's-do-what-we-can-to-get-Congress-to-act moves in the first opinion. If you liked that opinion, it's a little hard to object to the Second Circuit's pragmatic, politically savvy, we-got-Congress-to-act-on-this-so-we're-done moves in the second opinion.
Finally, I have to pat myself on the cyber-back for predicting (here and here) that the constitutional issues raised by the telephony metadata program were not headed quickly to the Supreme Court. Justices Antonin Scalia and Ruth Bader Ginsburg suggested last year that the Court would have to answer how the Fourth Amendment applies. It might happen eventually. But at least so far, the circuit court cases on this have ended not with a bang but a whimper.