Does the PATRIOT Act Allow Bulk Surveillance?

There are two concurrent debates about the National Security Agency's bulk collection of telephone metadata. One is whether the program violates the Fourth Amendment because it's a warrantless search or seizure. The second is a statutory question: Does the law Congress passed authorize it in the first place?

A panel of federal judges on the Second Circuit Court of Appeals ruled Thursday morning in ACLU v. Clapper that the collection program isn't authorized by Section 215 of the PATRIOT Act, which the government has cited to justify the program. In short, the judges ruled that the law doesn't allow the government to collect domestic phone records, because that's not what Congress authorized in the first place.

The ACLU brought the lawsuit against James Clapper, the director of national intelligence, less than a week after Edward Snowden revealed the NSA surveillance programs in 2013. One of Snowden's first disclosures was a federal surveillance-court order for Verizon to hand over all of its domestic telephone metadata records to the NSA for a three-month period. That included records from the ACLU and its New York state chapter, both of which were Verizon customers at the time.

The Second Circuit's decision only partially addresses the lower court's ruling. While the ACLU asked the appeals court to rule on the constitutional aspect, Judge Gerard Lynch, who wrote the opinion for the panel, ruled that the fact that the program wasn't allowed by Section 215 meant the broader Fourth Amendment questions didn't need to be answered. At the same time, he acknowledged serious questions about its constitutionality: "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 opinion by Lynch—who was appointed to the federal bench by Bill Clinton and elevated to the Second Circuit by President Obama—reads as a strong rebuke of the government's arguments. (As Orin Kerr noted at the time of oral arguments, the panel was a good draw for the ACLU.)

"[Section] 215 does not permit an investigative demand for any information relevant to fighting the war on terror, or anything relevant to whatever the government might want to know. It permits demands for documents 'relevant to an authorized investigation,'" Lynch wrote. "We agree with appellants that the government’s argument is 'irreconcilable with the statute’s plain text.'"

The panel also rejected the argument, successfully advanced by the government at the lower court, that people contesting the bulk collection don't have standing to challenge the law. The Supreme Court rejected a similar suit in 2013 because the plaintiffs could not prove they were affected by a bulk-collection program. On Thursday, the panel that the ACLU had met that threshold: "The government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program. Nor has the government disputed that claim."

Citing the debate since Edward Snowden revealed the bulk-collection program, Lynch also rejected the idea that legislators might have justified the program without entirely understanding it.

"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," he wrote. "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 [Section] 215 because there was no real opposition to that interpretation."

The circuit-court decision vacates the district-court ruling and sends it back to be reheard. In the lower court, Judge William Pauley ruled against the ACLU on constitutional grounds in December 2013. The metadata program doesn't violate the Constitution, he said, because citizens were handing their information over to a third party—their phone companies—which then gave it to the federal government. Under the Supreme Court's 1979 decision in Smith v. Maryland, Judge William Pauley said there was no expectation of privacy for information given to third parties.

But that doctrine is now disputed. The very same month, a federal judge in the D.C. District said that Smith wasn't really relevant, due to advances in communication technology. As such, Judge Richard Leon ruled against the program on constitutional grounds. Of course, just as the Second Circuit overturned the district judge, Leon could see his decision reversed or vacated by the D.C. Circuit. There's been no decision yet; oral arguments took place in November. Meanwhile, the Ninth Circuit has also heard a case about NSA collection.

In short: It's all a big mess, with various courts siding with both the government and plaintiffs, on both statutory and constitutional grounds. If the circuits end up with conflicting decisions, the Supreme Court could be forced to weigh in on the surveillance program. But there's a good chance it won't come to that. The Second Circuit didn't order collection be stopped, noting that Section 215 expires on June 1. There's a fight going on in Congress about how to best handle the expiration, with cleavages among Democrats and Republican and between the House and Senate. Civil-liberties-focused lawmakers want to constrain the program, while Senate Majority Leader Mitch McConnell favors a simple extension. And if Congress can't reach a deal and the law expires, that would resolve the issue as well.