On Tuesday, the Second Circuit will hear oral argument in ACLU v. Clapper, one of the cases challenging the Section 215 bulk telephony metadata program. The Second Circuit is reviewing Judge Pauley’s decision upholding the program. You can read all the briefs in the case here. This will be the first federal appellate argument on the Section 215 challenges. The DC Circuit’s argument, reviewing Judge Leon’s opinion, is not scheduled until November 4.
The ACLU has drawn a favorable panel for its challenge: Judge Lynch, Judge Sack, and District Judge Broderick. Notably, Judges Lynch and Sack were (respectively) the author and one of the joiners of the Second Circuit’s surprising 2011 decision making it very easy to establish standing to challenge secret surveillance under Section 702 of FISA. The 2011 opinion was written in a way to attract Supreme Court review, and it did: The Supreme Court granted cert and reversed that decision by a vote of 5-4 along R/D lines. Given the votes of Judges Lynch and Sack in the earlier Clapper litigation, their appearance on Tuesday’s panel seems to bode well for the ACLU.
I don’t know much about the third judge on the panel, Judge Vernon Broderick, who is a recent Obama appointee to the district court. But Broderick’s resume has an interesting entry that suggests that he may be another good draw for the ACLU: At least as of last year, Broderick was a member of the National Association of Criminal Defense Lawyers, a group that (among other things) “seeks to ensure that the Fourth Amendment remains a vibrant protection against encroachments on the privacy of the individual” and “continue[s] to thrive in the digital age.”
Unfortunately, the Second Circuit does not post the audio of its oral arguments. But the news accounts of the argument should be worth following closely.