Second Circuit and ACLU v. Clapper: A step in the right direction

On May 7, 2015, the Second Circuit Court of Appeals issued an opinion in ACLU v. Clapper which invalidated the NSA’s collection of bulk internet metadata under Section 215 of the Patriot Act, the infamous “business records” provision. The opinion by Judge Gerard Lynch found that the process of mass data collection “exceeded the scope” of what Congress had authorized in approving the PATRIOT Act. While a large victory for advocates of personal freedom and privacy, there is still much work to be done in these areas.

Prior to reaching the appeals court, Judge William H. Pauley III of the Southern District of New York had ruled in the case in 2013 that the bulk collection of telephone metadata does not exceed the authority of the PATRIOT Act or the Fourth Amendment. This decision by the Second Circuit vacates that favorable precedent for the government, leaving a decision favorable to privacy advocates in the Second Circuit and in the D.C. Circuit.

{mosads}The D.C. district court case Klayman v. Obama strongly admonished the Section 215 bulk collection program while holding that the plaintiffs had standing to challenge it. Judge Richard Leon claimed in that case that “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval.” Klayman is presently up for appeal in the Court of Appeals for the D.C. Circuit.

The Second Circuit did not, however, reach the constitutional merits of the case, grounding the result in statutory law. Indeed, Judge Lynch noted that “Perhaps such a [bulk collection] is required by national security needs in the face of the dangers of contemporary domestic and international terrorism. But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate in the legislative history of § 215, and the language of the statute, on its face, is not naturally read as permitting [such].”

The decision, thus, leaves open the question of whether the Fourth Amendment prevents the government from engaging in this type of mass search. The D.C. district court in Klayman noted that the plaintiffs had a “strong likelihood” of success on their Fourth Amendment merits. The Second Circuit in the May 7th Clapper decision did not reach those merits, but noted that the “Fourth Amendment claim in particular, presents potentially vexing issues.”

Indeed, as the court notes, the government’s defense in that case rested largely on the third party doctrine, an increasingly disfavored and anachronistic legal rule that individuals do not retain a privacy interest for Fourth Amendment purposes when they reveal information to any third party. The Supreme Court, if it hears the case, may avoid the constitutional issues along similar lines and rest their decision in the text and history of the PATRIOT Act itself.

The statutory basis for the decision also should give privacy advocates pause because of the repetition of these programs across various statutory or regulatory schemes. For example, if the Supreme Court were to invalidate the Section 215 collection program on statutory grounds hearing an appeal from this Second Circuit case, there wouldn’t necessarily be an implication for other collection programs, like those authorized under Section 702 of the FISA Amendments Act or Executive Order 12333. Programs could still continue unmolested under a decision by the Supreme Court, unless the manner and type of collection was invalidated on constitutional grounds.

This decision by the Second Circuit comes after a reversal by the Supreme Court in a similar 2013 case regarding whether Amnesty International attorneys had standing to challenge the Section 702 collection program (a.k.a. “1881a program”). In that case, Clapper v. Amnesty International, Justice Alito, writing for the Court, reversed the Second Circuit and denied standing to the lawyers, setting a high bar for standing in future cases. If in the appeal from Klayman, the Court of Appeals for the D.C. Circuit rules contrary to the Second Circuit, it strengthens the possibility of a Supreme Court imprimatur on the legality of the program to resolve the potential circuit split.

Meyer is a Young Voices Advocate and research fellow at Brooklyn Law School.