Surveillance: NSA Warrantless Wiretapping

Oral Argument Recap: Friday's Argument in ACLU v. Clapper

By Matt Danzer
Monday, November 25, 2013, 3:30 PM

This past Friday, District Court Judge William H. Pauley III, of the Southern District of New York, heard oral argument in the American Civil Liberties Union’s ("ACLU") challenge to the government’s bulk telephony metadata collection program under Section 215 of the USA PATRIOT Act. Before Judge Pauley were two motions in the case of ACLU v. Clapper: first, the ACLU’s request for a preliminary injunction to halt such surveillance; and second, the Department of Justice’s motion to dismiss the case entirely, on standing and other grounds.

While I wouldn't want to predict the outcome of the case based on oral argument alone, it seemed to me that Judge Pauley had a firm understanding of the programs in question and was not inclined to accept the government's case unchallenged. In the face of some very pointed and effective questions, all three lawyers---two for the ACLU and one for the government---remained remarkably consistent with their briefs.

The ACLU Tag Team Attack on Bulk Collection of Telephony Metadata

Why does bulk telephony metadata collection exceed the authority set forth in Section 215?  Answering that question is the job of the ACLU’s Jameel Jaffer---one of two ACLU attorneys who will address the court this morning.  First, Jaffer points out that when Congress first enacted Section 215 in 2001, allowing for the collection of “tangible things,” it also added a provision to the Stored Communications Act (“SCA”).  This prohibited electronic communication providers from disclosing call records to the government except under specific exceptions that do not include Section 215, in Jaffer’s view.  And, argues Jaffer, Congress knew how to make such exceptions.  Consider, for example, the Foreign Intelligence Surveillance Act’s (“FISA”) provisions regarding pen register/trap and trace devices, physical searches, and the targeting of foreign persons outside the United States.  All of those include language allowing for such activities “notwithstanding any other provision.”  But Section 215 doesn’t, argues the ACLU attorney.

Jaffer next contends that even if Section 215 can be thought of as an exception to the SCA, then the exception only authorizes the government to collect records that it could obtain by means of a grand jury or administrative subpoena under 50 U.S.C. § 1861(c)(2)(D).  And yet that authority does not extend to broad collection orders like those challenged here. Further, even if such broad collection was consistent with (c)(2)(D), it does not comply with Section 215’s relevance language in 1861(b)(2)(A), which requires that there be “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” Jaffer argues that this requirement is more restrictive than the grand jury subpoena relevance provision because, unlike there, Section 215 states that the government must believe that the tangible things sought are all relevant.

Judge Pauley presses Jaffer on this, asking how the “reasonable grounds” language affects the relevance requirement. Jaffer replies that while “reasonable grounds” does relax the requirement that every record actually be relevant, the collection authority must still be based on grounds indicating that all collected records are relevant. By the government’s own admission, says Jaffer, most of the collected call records are not between terrorists and therefore are not relevant. Further, he notes that if the court finds that the government can collect telephony metadata under Section 215, it necessarily opens the door to bulk collection of any type of interrelated records, such as e-mail, web browsing, and even possibly medical records. And no-limiting-principle alert: if the government can collect call records for terrorism investigations, then it seemingly also could collect such records for many other types of investigations, including drugs and insider trading. Judge Pauley pushes further, wondering whether what distinguishes such extensive collection in this context is that it is necessary to make use of the small amount of data connected to terrorists. Jaffer responds that he neither concedes that the scale of such collection is necessary, pointing to the supplemental declaration of Professor Edward W. Felten; nor does he believe that necessity is adequate to overcome the statutory requirement of relevance. In addition, he notes that the government seems to have backed away from arguing that bulk metadata collection is the only means of accomplishing its surveillance goals. While the government had previously argued before the Foreign Intelligence Surveillance Court that such collection was the “only effective means” of doing so, it now only asserts that it is one tool of many.

Finally, Jaffer addresses the government’s argument that the ACLU is precluded from challenging the Section 215 collection orders, as those orders are directed not at the ACLU, but rather, at the telephone service providers. He notes that the Administrative Procedure Act includes a strong presumption in favor of a right of action for injunctive relief and the burden of proof is on the government to provide clear and convincing evidence against such a right. While the providers are given an explicit right of action, Jaffer argues that this was a response to previous questions regarding the providers’ ability to bring an action challenging National Security Letters, and it was not meant to preclude third parties from bringing such actions. As further proof that the provider right of action was not meant to preclude third party action, Jaffer points out that Congress never expected the public to learn about the surveillance programs and so could not have intended to preclude third parties. He also explains that the government’s reliance on Block v. Cmty. Nutrition Inst. is misguided because this third party action is not an end run around administrative remedies, the statute is meant to protect parties like the ACLU, and those with an explicit right of action (i.e., the providers) have no interest in defending the rights of third parties and have never challenged a Section 215 order.

His statutory position sketched out, Jaffer thanks the court. The next lawyer for the ACLU, Alex Abdo, then rises to present two constitutional claims: the bulk telephony metadata program, according to the second ACLU attorney, violates the Constitution under the First and Fourth Amendments. With respect to the latter, Abdo claims that this sort of extensive, long-term collection constitutes a “search” because the amount of metadata data collected can serve as a proxy for content, per Professor Felten’s supplemental declaration. Judge Pauley asks whether this theory holds that the content is revealed merely upon collection of the data, or after the data is queried by the National Security Agency. Abdo replies that the point of collection is adequate to constitute a search under the Fourth Amendment because it is the moment when the government penetrates the private sphere. Otherwise, notes Abdo, the government would have the power to collect and store all kinds of data until it had reasonable grounds for accessing it.

Abdo next addresses the appropriate test for “reasonable expectation of privacy” in this case. He quickly distinguishes the Supreme Court’s ruling in Smith v. Maryland, which found that there is no reasonable expectation of dialed telephone numbers. Abdo notes that the Smith case addressed the call detail records of a suspected criminal over two days, whereas here the government is collecting data on millions of Americans that are not criminal suspects over several years with no end in sight. Judge Pauley jumps in, asking what test the ACLU would apply if not Smith. Abdo points to two concurring opinions in Jones v. United States, one by Justice Samuel Alito and the other by Justice Sonya Sotomayor, which call into question long-term, bulk collection. Judge Pauley asks at what point telephony metadata would be controlled by Smith. Abdo admits that the line is unclear, but says that the key question here is at what point an individual’s expectation of privacy is upset.

Lastly, Abdo moves to the First Amendment, noting that the legal burden is distinct from that applied under the Fourth Amendment.  It is, in his view, important to apply each regime separately in this case. For Abdo, the first relevant question under First Amendment analysis is whether the metadata collection places a substantial burden on the ACLU. Judge Pauley asks how such a burden can exist if the ACLU cannot know if the government will ever see or analyze its records. Abdo argues that the simple knowledge of such collection chills communications by those who might want to communicate privately with the ACLU. Judge Pauley questions whether a substantial burden can be proven without evidence of a chill, but Abdo notes that it is impossible to prove a negative---that someone did not contact the ACLU because of the surveillance programs---and that a common sense chill is adequate to show a substantial burden. With that, Abdo reserves the remainder of his time.

The Government’s Marathon Defense

After about an hour of oral argument by two ACLU lawyers, Assistant Attorney General Stuart Delery rises to present the government’s opposition to the preliminary injunction bid, and arguments in favor of the United States’ motion to dismiss. He begins by listing some key facts that favor Delery’s side: First, the surveillance orders in question pertain to the business records of telecommunication providers; second, such surveillance is only used for terrorism investigations; and third, the orders only allow for collection of metadata, not content.

Delery says that the court need not reach the statutory or constitutional arguments presented by the ACLU, for a straightforward reason: the harm that it claims is speculative in nature, and thus the organization lacks standing to sue. NSA may only review metadata that meets the “reasonable, articulable suspicion” (“RAS”) standard;  there is no evidence that queries of the metadata under this standard would return records for calls to or from the ACLU. Judge Pauley points out that there is no dispute here that the ACLU’s call data is collected, which would distinguish this case from the Supreme Court’s ruling, last term, in Clapper v. Amnesty International USA. Delery says that while that it is true that the decision did not involve collection, the actual harm claimed by the ACLU is a chill on contacts---and that, says Delery, is too speculative a claim under existing precedent. Judge Pauley then asks whether the ACLU’s Fourth Amendment privacy interests provide standing in this case, even if Section 215 does not.  Delery rejoins that there is no Fourth Amendment privacy right in this case and there is no harm until the data is reviewed.

Delery next makes the case that the judicial review scheme created by the Foreign Intelligence Surveillance Act for Section 215 orders precludes the ACLU’s claims here. He says that telecommunication providers may challenge the orders, and that it is easy to find implied preclusion of third parties from the structure of FISA. For example, 50 U.S.C. § 1861(f)(2)(D) provides that production orders not explicitly modified or overturned by FISC review remains in effect. Further, a portion of the PATRIOT Act codified at 18 U.S.C. § 2712 authorizes damages for violations of various FISA provision---but not for ones arising from Section 215 collection---and does not allow the injunction requested by ACLU in its motion. For Delery all these provisions reflect Congress’s knowledge as how to provide for third party remedies, and a deliberate decision here not to provide for them with regard to Section 215. He also points out that the FISC, not this district court, is the appropriate place for such a challenge because Congress explicitly considered and rejected district court challenges to FISA decisions in 2006.

Judge Pauley asks whether all of this evidence shows congressional intent to disallow third party challenges or, rather, congressional belief that third parties would not find out about the program and so Congress left the issue unaddressed. Delery says that it must show congressional intent to prevent third party claims in this case, otherwise it would allow a wide range of challenges specifically left to the FISC, including to minimization procedures.

Delery next explains why bulk telephony metadata collection is necessary to the success of Section 215. First, he argues that legislative history indicates that that the relevance provision referenced by Jameel Jaffer was meant to clarify the breadth of the investigatory power under Section 215, rather than to narrow that power. Judge Pauley asks if grand jury indictments are the right place to look, in order to understand the relevance provision. Delery, answering: grand jury practices are informative, but not controlling this regard.  Rather, the court should look at relevance through the lens of “reasonable grounds” and having in mind the context of counter-terrorism. The government is trying to disrupt plots by looking for patterns and connections in data that may seem disparate at first, but might ultimately cohere and reveal something vital to the national security. A targeted investigation wouldn’t work, he says. Judge Pauley points out that the government only argues that the investigatory technique of bulk telephony metadata collection is relevant under the statute, rather than defending the relevance of the subject matter of the program--that is, the specific data collected under Section 215. Delery explains that the bulk collection program is tied to the purpose for which the law was passed and therefore all data collected by a relevant technique is relevant. If that is the case and all call detail records are relevant, asks Judge Pauley, then why is there a legal prohibition against disseminating such records to the FBI? Delery explains that this prohibition is primarily about practical considerations to ensure that the NSA identifies useful data to pass on to the FBI.

Delery next notes that Congress has approved reauthorizations of the law after briefings on the various collection programs. Judge Pauley asks whether Congress really knew about these programs when it reauthorized the PATRIOT Act. Delery says that Congress is presumed to know what executive agencies are doing, especially when there are specific opportunities to be briefed on those activities, but Judge Pauley presses further, noting that former House Judiciary Committee Chairman Jim Sensenbrenner (R-WI) has an amicus brief in this case, contending that the Congressman did not know the full extent of these programs when he voted for reauthorization. Delery responds by running through the numerous opportunities given to members of Congress to review materials on this and other programs, and to consult with members of the Intelligence Community prior to authorization.  But Judge Pauley seems unsatisfied, noting that while there is a presumption that Congress is informed, what case could overturn that presumption if not this one? Delery answers by reiterating that the executive branch provided ample opportunity for Congress to learn about this program.  The congressional record, argues the Assistant Attorney General, establishes that surveillance was a major focus in the congressional debate over reauthorization.

Delery’s penultimate topic is the structure of the statute, specifically 50 U.S.C. § 1861(c)(2)(D). Judge Pauley asks how the government reconciles this with the SCA prohibitions raised by Jaffer earlier. Delery explains that 18 U.S.C. § 2702(a)(3), the SCA provision in question, covers voluntary disclosures and is not relevant to Section 215 orders. He also goes back to the relevance issue to note that relevance does not require that the techniques used be the only way to achieve the desired result. The program has been valuable on its own and as a complement to other tools in the government’s counter-terrorism arsenal. The authority is tailored to telephony metadata because the characteristics of such data allow for useful connections. Judge Pauley asks about claims that the program has not been effective, to which Delery responds that the government is not aware of another way to collect and analyze such data.  And recent disclosures indicate that the program indeed has been effective.

Finally, the government’s attorney turns briefly to the ACLU’s constitutional claims.

On the Fourth Amendment, he says, the ACLU has no reasonable expectation of privacy when it gives data to a third party, like the service provider. The relevant analysis here is the querying, not the alleged ability to determine content of calls from metadata. Delery says that everyone knows that call data is held by service providers, as demonstrated by details of such data on bills. Judge Pauley asks whether the SCA prohibition possibly creates such an expectation, but Delery dismisses this possibility because of the numerous exceptions to that prohibition, which includes Section 215. Judge Pauley next asks whether Justice Sotomayor’s concurrence in Jones indicates that the test for reasonable expectations should be rethought. Delery admits that a new test will ultimately be necessary as it pertains to bulk collection and aggregation, but that issue remains unresolved and no other test has been proposed in this case.  Consequently, Smith’s test still controls for determining what constitutes a “search.” And any search is reasonable in the counter-terrorism context when it is appropriately tailored to the FISC’s RAS standard and employs minimization procedures. Delery notes that the ACLU has not challenged the RAS standard and the NSA has only reviewed documents that fall under that standard.

On the First Amendment, Delery quickly notes that the ACLU has not alleged that the telephony metadata program is directed at the ACLU with the purpose of curtailing associative and expressive activities; instead, the idea is that bulk collection might prompt third parties to refrain from contacting the organization. But because there is no claim of specific targeting, Delery argues, the First Amendment claims must fail along with their counterparts under the Fourth Amendment.   Having argued for over an hour, Delery concludes.

Final Remarks

On rebuttal, Jaffer runs through four points. First, there’s no statutory bar to this lawsuit.  Contrary to the government’s view, 50 U.S.C. § 1861(f)(2)(D) only appears in a section dealing with the rights of service providers, and thus only precludes those parties---not others---from challenging production orders outside of the FISC.  Next, he reminds the court that the ACLU is only challenging the government’s application of Section 215, not the validity of the section on its face. Third, Jaffer says that even if the ACLU’s statutory claims are precluded, the constitutional claims are not. And finally, as it pertains to preclusion, Jaffer notes that “Congress doesn’t hide elephants in mouse holes.” His implication is obvious enough: the legislature usually doesn’t bar lawsuits by means of such disparate and contradictory language.

Jaffer tags in Abdo. The latter argues that it is a misnomer to say that the ACLU is not injured because the government has not analyzed ACLU call detail records, as every query accesses those records to determine whether a target has contacted the ACLU. Further, Professor Felten’s declaration makes clear that the government could accomplish its goals without creating a database of all call records.  Abdo also points out that all of the government’s disclosed examples of success under the Section 215 program did not involve calls more than one “hop” from the target. Regarding the government’s First Amendment targeting claim, Abdo argues that the entire point of the collection program is to determine associations. Regarding the Fourth Amendment, Abdo perceives a pretty slippery slope: if the court accepts the government’s interpretation, says Abdo, then it would allow collection and storage of all sorts of information.

A reply follows from the Civil Division’s chief lawyer. Delery disputes Jaffer’s point regarding Section 1861(f)(2)(D); clearly, Congress wouldn’t intentionally create a system whereby disparate courts would address, at different times and through different rules, different legal issues arising from FISC orders. With his voice clearly faltering from fatigue, Delery lastly contends that the court should rely not on congressional statements as to notification about these programs.  What matters, instead, is how members voted regarding the programs, subsequent to congressional briefings.

Judge Pauley thanks counsel and reserves judgment.