The Legal Legacy of the NSA’s Section 215 Bulk Collection Program

“The Legal Legacy of the NSA’s Section 215 Bulk Collection Program” by Michael Price, originally appeared on Just Security, on November 16, 2015.

Last week’s opinion in Klayman v. Obama by Judge Richard Leon dealt another, emphatic(!) blow to the constitutionality of the NSA’s bulk phone record surveillance program under Section 215 of the USA Patriot Act. The ruling concludes that NSA’s bulk metadata collection likely violates the Fourth Amendment, but as others have noted, the victory may not have tremendous practical significance. It is limited to specific plaintiffs and has now been stayed by the DC Circuit. Moreover, by the time the appellate court decides the government’s appeal — even with the expedited review the court has ordered — the 215 program as we know it will probably have ended. As a result, the panel could find the appeal moot and vacate Judge Leon’s opinion, as Steve Vladeck observes.

So, is there any chance of a precedential, Fourth Amendment-based ruling holding the 215 program unconstitutional? Perhaps. Meet Basaaly Moalin, probably the only US person to challenge the phone metadata program whose claims will never be dismissed on standing grounds.

Moalin is a criminal defendant in the only prosecution acknowledged by the federal government to involve information derived from the NSA’s 215 program. He was convicted in 2013 on low-level terrorism financing charges and is now appealing to the Ninth Circuit, raising both statutory and constitutional challenges to the bulk phone records collection that led to his investigation and prosecution.

The story of his conviction is a strange one, though: Moalin’s defense attorneys had never heard of the 215 program when they went to trial. (In fact, the government takes the position that it does not need to notify defendants of Section 215 surveillance that is used against them during criminal proceedings.) It was more than four months after Moalin’s conviction that the FBI touted the NSA’s role in his case, during testimony before the House Intelligence Committee following the Snowden disclosures. Indeed, United States v. Moalin is the only example that the government could identify to justify the 215 bulk phone records program, a fact that led the Privacy and Civil Liberties Oversight Board to conclude the mass surveillance operation has been wildly ineffective. Moalin, together with three other defendants from related cases, moved for a new trial based on the post-conviction NSA revelation — a request denied by the district court. On appeal to the Ninth Circuit, Moalin filed a whopping 220-page brief at the end of October challenging the Section 215 surveillance.

Moalin first contends that the 215 program is unlawful because it exceeds the statutory authority created by the Patriot Act. The law requires the collection of metadata to be “relevant” to an authorized investigation, but the government reads that term expansively to include almost every telephone call made or received in the United Sates. Moalin’s argument tracks the Second Circuit’s decision in ACLU v. Clapper, which called the NSA’s interpretation “unprecedented and unwarranted” and held the 215 program unlawful. Likewise, Moalin maintains that the “relevance” standard in Section 215 cannot justify “the staggering scale of collection that occurred under the NSA program.” The Ninth Circuit could agree with its sister court, conclude that “relevant” does not mean “the whole haystack,” and find that the initial 215 surveillance of Moalin’s phone was unlawful. If so, Moalin argues, then all of the subsequent FISA surveillance targeting his communications would need to be suppressed as “fruit of the poisonous tree” under 50 USC 1806.

On the other hand, the Ninth Circuit might disagree with Clapper (which seems unlikely) or decide to address the Fourth Amendment question directly. The latter is possible because at least one other unnamed NSA surveillance program appears to be at issue in this case. An FBI email, disclosed as part of the discovery material for a government linguist, references a missed call (i.e., metadata) to Moalin’s cell phone picked up by “another agency,” presumably the NSA, and possibly pursuant to Section 702 or Executive Order 12333.

Of course, the Fourth Amendment question leads to the third-party doctrine and whether Smith v. Maryland controls the outcome of this case. On this constitutional point, Moalin follows Judge Leon’s reasoning in Klayman, arguing that the 215 program is so fundamentally different from a pen register in 1979 that Smith is not determinative for Fourth Amendment purposes.

The Brennan Center for Justice (my employer), filed an amicus brief on this issue in support of Moalin, joined by a group of privacy advocates, defense lawyers, and First Amendment organizations. The brief seeks to explain why the third-party doctrine is “ill suited to the digital age,” as Justice Sonia Sotomayor put it in United States v. Jones. It argues that communications metadata is the modern equivalent of 18th Century “papers” under the Fourth Amendment, and that a warrant should be required to seize or search it as a general rule. This is particularly true, we argue, because the data can “reveal confidential relationships between reporters and sources, whistleblowers and watchdogs, as well as attorneys and clients.” In other words, it “implicates the kind of expressive and associational activities that the Framers sought to protect by including ‘papers’ in the text of the Fourth Amendment.”

One final thought: Criminal cases can remove much of the uncertainty around whether a particular individual was subject to FISA surveillance and thus eliminate the standing issues that bedevil civil challenges. But the system does not work smoothly: The government does not reliably provide notice to defense attorneys (it sometimes evades notification requirements altogether by engaging in “parallel construction”) and defense counsel are not allowed to see the materials comprising the application for surveillance. Still, the upside of criminal challenges is that there is no need to demonstrate ongoing surveillance or concrete damages in order to establish the requisite “injury.” Custody or conviction is more than sufficient.

This state of affairs is far from ideal. As Brett Kaufman and Patrick Toomey have pointed out, it means that “the public today depends on the people it is desperately trying to put in prison—criminal defendants, often in terrorism cases no less—to litigate the privacy rights of millions.” Courts should not be quick to dismiss civil litigants’ claims for standing or for mootness reasons, especially if the NSA intends to retain and analyze that data for years to come. It is time to let good facts make good law.