The United States Second Circuit Court of Appeals has found that the telephony metadata collection program of the NSA violates section 215 of the Patriot Act. The opinion is unanimous from a three judge panel and was written by Judge Gerard E. Lynch. For those unfamiliar with the siting of the U. S. Courts of Appeal, the Second Circuit encompasses Connecticut, New York and Vermont.
The opinion is 97 pages and not all of it will be detailed here. The lower court had thrown out the case based on “preclusion”. That means it found that the court system was precluded from reviewing section 215 of the Patriot Act. Much of the appellate court’s opinion is devoted to contradicting that conclusion and gets into many of the procedural weeds associated with the concept of judicial preclusion.
After reversing the District Court Judge’s interpretation of judicial preclusion, the Court of Appeals went on to find that the metadata collection program was so broad and unlimited that it violated even the breadth of the Patriot Act provision from which it sprang. The Court did not reach the Constitutional issues raised by the ACLU related to the First and Fourth Amendments. There is a judicial preference for deciding cases on less than constitutional grounds wherever possible.
Here briefly is the Court’s analysis. As a starting point, section 215 of the Patriot Act, under which the subpoenas for the telephony metadata collection were issued, contains this language, requiring of the government:
“…a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) of this section to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”
The Court then details the specifics of the program, which it summarizes at page 61 of the opinion as follows:
“The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist…”
The Court notes that warrants and subpoenas, as well as terms like relevance and investigation have long standing meanings within the law that section 215 does not expressly alter. The Court concludes, supported by the recitations of Senator Kyl at the time, that Section 215 was intended to treat the gathering of materials similarly to that in criminal investigations and grand jury proceedings.
The Court finds that the metadata program as employed by NSA is not a process of collecting relevant evidence in an authorized investigation, but is rather the creation of a historical repository of information that the bulk aggregation of metadata allows. This is not, according to the Court currently relevant as that term is used in law, but only speaks to being potentially relevant to some future, not currently existent, investigation. As such, the Court concludes that the NSA stretches the meaning of relevance beyond its traditional definition.
The Court then discusses the use of warrants and subpoenas to obtain evidence. It notes that
“[Warrants and subpoenas] typically seek the records of a particular individual or corporation under investigations and cover particular time periods when the events under investigation occurred.”
The Court finds that the NSA telephony metadata collection programs contains “no such limits”. The Court also notes that section 215 specifically excludes its use for conducting “threat assessments”.
Summing up its decision that the NSA’s collection program exceeds the authorization of section 215, the Court, at page 76 of its opinion says,
“The language of § 215 is decidedly too ordinary for what the government would have us believe is such an extraordinary departure from any accepted understanding of the term “relevant to an authorized investigation.”
For those who wish to read the entire opinion:
Case Link
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Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.