Cross-posted on LawFare.
It is clear that the Second Circuit’s ruling that the NSA’s bulk collection of Americans’ telephone records violates Section 215 of the Patriot Act will have significant implications for the current legislative debate over whether and how to reauthorize Section 215. What those implications are, however, is less clear. I’ve attempted here to map out the decision’s effect on existing legislative options.
First, a brief summary of the court’s reasoning. The three-judge panel unanimously held that the NSA’s program violates Section 215 because the telephone records of nearly every American are not “relevant” to an “authorized investigation.” The panel acknowledged that grand jury subpoenas—which also employ the “relevance” standard, and which serve as a model for Section 215—may allow the government to obtain large amounts of information in order to find relevant data contained therein. The information acquired, however, is nonetheless limited by the particular facts of the investigation, which generally restrict both the subjects of the search and the time frame. The NSA’s bulk collection program, by contrast, has no such limits, precisely because it is not tailored to a particular investigation. Instead, it seeks to create a “historical repository of information” (in the government’s words) that can be mined in future, unspecified counterterrorism probes. “[S]uch an expansive concept of ‘relevance,’” the panel held, “is unprecedented and unwarranted.”
The panel also rejected the argument that Congress, by reauthorizing the Patriot Act on two occasions, had “ratified” the FISA Court’s interpretation of the term “relevance” to allow bulk collection. As the judges pointed out, the doctrine of ratification is not oblivious to reality. Congress cannot be presumed to be aware of highly classified decisions that were not made available to some members, and were made available to others only under restrictions that impeded their ability to digest, understand, and discuss them.
The decision does not put an immediate end to bulk collection, however. The case was before the court on an appeal from the denial of a motion for a preliminary injunction. The panel declined to order such preliminary relief, even though it found that the plaintiffs had demonstrated a “certainty” of success on the merits of their statutory claims. The judges noted that Section 215 is scheduled to expire shortly, and that “the statutory issues on which we rest our decision could become moot … and the constitutional issues appellants continue to press radically altered” by Congress’s action or inaction in the next few weeks. They thus left it to Congress to decide whether to enact legislation authorizing bulk collection, enact legislation terminating or substantially modifying the program, or enact nothing at all—in which case Section 215 would expire and the program would end.
Of course, Congress is not starting from scratch: lawmakers and advocates already have teed up three legislative options. The first is a straight reauthorization of the expiring provisions of the Patriot Act, offered by Senate Majority Leader Mitch McConnell (R-Ky.) and the Senate intelligence committee’s chair, Richard Burr (R-N.C.). The second is the USA Freedom Act, a bill that would end the NSA’s bulk collection program and create a more focused call records program in its place. This bill was passed out of the House Judiciary Committee on a 25-2 vote last week and is likely to receive overwhelming support in a House floor vote next week. And the third option is to do nothing and allow Section 215 (and two other provisions of the Patriot Act) to sunset.
The option most dramatically affected by the Second Circuit’s ruling is the straight reauthorization approach. Had the Second Circuit not issued its decision, reauthorizing Section 215 would have enabled the bulk collection program to continue as a practical matter. Further, it arguably would have had the legal significance of ratifying the FISA Court’s understanding of “relevance.” The Second Circuit is no doubt correct that Congress’s previous reauthorizations cannot be deemed ratifications, given the secrecy that then shrouded the program—but the same could not be said following Edward Snowden’s revelations.
Now, however, a federal appeals court has held that Section 215’s authority to collect “relevant” records does not extend to the bulk collection program. If anything, reauthorizing Section 215 would ratify that understanding of the term “relevance,” thus increasing the likelihood that the Second Circuit’s decision would be upheld on appeal. In any event, a straight reauthorization would not permit bulk collection to continue as long as the Second Circuit’s ruling stands. The panel itself stated, “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” (emphasis added).
This may be a game-changer. If McConnell and other lawmakers wish to ensure the continuation of bulk collection, they will have to introduce a bill that expressly permits the NSA to collect the telephone records of every American. Time is short to craft such significant legislation, let alone get it to the floor before Section 215’s expiration. More to the point, a majority of Congress supports placing limits on the NSA; McConnell already faced an uphill battle obtaining even a temporary extension of the Patriot Act’s expiring provisions in the absence of reforms. Some lawmakers, however, might have reassured themselves that a vote to temporarily reauthorize three provisions that permit a range of surveillance activities was not an endorsement of bulk collection. There is no longer a stealth option for supporting the NSA’s program, and the overt option of creating a new bulk collection authority is simply not viable.
The question remains: how does the Second Circuit’s ruling affect the USA Freedom Act? The bill retains the “relevance” requirement; in addition, it seeks to prohibit the bulk collection of business records under Section 215 and other foreign intelligence collection authorities by requiring the government to base its requests on a “specific selection term.” In the context of phone records, the term must be an individual, account, or personal device. However, the government may obtain the records not only of that individual/account/device, but also anyone identified in those records – a second “hop.” For other types of business records, the “specific selection term” may be somewhat broader – while it cannot encompass entire geographic regions or service providers, it could encompass an IP address, which may be used by hundreds of people in some cases.
Some have suggested that the panel’s decision requires deeper changes than the bill would put in place. The ACLU’s executive director, for instance, stated, “The current reform proposals from Congress look anemic in light of the serious issues raised by the Second Circuit.” Others have suggested the opposite: that the court’s decision effectively mandates the measures proposed in the bill. Neither assessment seems fair. The Second Circuit found that the bulk collection program exceeded any reasonable conception of “relevance,” but it did not engage in a granular analysis of what limitations would be necessary to satisfy the statute.
For the same reason, though, it is no longer clear how USA Freedom compares to leaving Section 215 as-is. Would Section 215’s “relevance” standard, fairly interpreted, allow the government to collect more than what USA Freedom would allow—a third hop, perhaps? Or would USA Freedom, by including a second hop in the call records program and sanctioning non-individualized “specific selection terms” for other kinds of collection, actually expand what the term “relevance” otherwise would permit?
This uncertainty is unlikely to sway USA Freedom supporters. For one thing, what the Second Circuit giveth, the Second Circuit en banc (or the Supreme Court) may taketh away. And the bill includes reforms beyond ending bulk collection, such as the creation of a panel of amici who may participate in FISA Court proceedings and a provision requiring greater transparency for significant FISA Court opinions. Instead of draining support from the bill, the fact that USA Freedom appears much closer to the legal status quo than it did on Wednesday is likely to embolden supporters, not only to resist any dilution of its protections, but to shore them up if and when the bill is considered in the Senate.
Finally, there is the option to let Section 215 and the other provisions expire. To the extent proponents of reform were concerned that merely allowing Section 215 to sunset would permit the government to shift bulk collection to other authorities—such as the pen register/trap and trace device authority, or National Security Letters—the Second Circuit’s decision should lessen those concerns. These alternative authorities also rely on the “relevance” standard, and so bulk collection should be impermissible under them as well, so long as the Second Circuit’s decision remains good law.
On the other hand, it can no longer be said that sunset is the simplest and most foolproof way to end bulk collection under Section 215—which, to many, was the main allure of this option. Indeed, to the extent some advocates supported sunset because they were concerned that the NSA would stretch the meaning of USA Freedom’s “specific selection term” to allow collection nearly as broad as what the agency does now, the Second Circuit’s ruling should allay that concern, too. That meaning of “specific selection term” necessarily will be informed by the bill’s relevance requirement, and that requirement cannot be interpreted to permit bulk collection.
Where does all of this leave us? The court’s decision may well have muddled the legislative debate rather than clarified it. The one thing that is certain, however, is that continuing the bulk collection program just became significantly more difficult. Given that the executive branch is likely to lobby intensely against the sunset option, I suspect that may end up being very good news for USA Freedom.