FISA: 215 Collection

Quick Thoughts on Judge Pauley's Opinion

By Benjamin Wittes
Saturday, December 28, 2013, 8:41 AM

Having now read Judge William Pauley's opinion in ACLU v. Clapper, I am largely, though not completely, in agreement with Peter Margulies's assessment of the matter. The opinion is a useful corrective to the over-the-top public reaction to Judge Richard Leon's earlier opinion in Klayman and will serve to recalibrate the discussion of that opinion, at least a little bit. Until this decision, fifteen FISC judges had had issued bulk metadata orders under Section 215, ruling that both the statute and the Constitution permit bulk metadata collection under the government's theory. But the one non-FISA Article III judge to consider the matter had ruled emphatically otherwise, issuing a preliminary injunction against the program. Now the game is a little more complicated. The FISA judges are still unanimous, but the non-FISA Article III judges are not. Critics of the program can no longer glibly distinguish between "real" and "rubber stamp" judges in discussing judicial reaction to the program. That is healthy.

On the merits, I agree with Judge Pauley that---at the lower court level, at least---there is just no way around the fact that Smith v. Maryland controls the metadata question under the Fourth Amendment. The Supreme Court may want to revisit this question, but there no way for lower courts to do it. Judge Pauley is on less firm ground, in my view, on the statutory point, where his argument tracks pretty closely the government's relevance theory---which the FISA judges have also embraced. For reasons I have discussed before, I'm not wholly comfortable with this reading of Section 215 and would prefer that Congress step in with a more solid statutory foundation for the program. That said, I think that given the degree of congressional buy-in to the program over time, it may well be the right view for the courts to take.

My main reaction to Judge Pauley's opinion, however, is not about its merits. It is to remind everyone that it does not matter very much. Following Judge Leon's ruling, civil libertarians exulted. In the wake of yesterday's ruling, by contrast, the New York Times has this anxious editorial, calling the opinion "deeply troubling" and reflecting "an alarming lack of skepticism." But district courts on either side of this issue aren't going to decide the two key issues here: whether 215 as currently written authorizes bulk metadata collection and whether the 4th Amendment tolerates the practice. They are mere way stations on the road to appellate---and presumably Supreme Court---review. The first key test will be how the D.C. Circuit and the Second Circuit react to these question, and specifically whether they agree or disagree on them and thus set up a circuit split. Ultimately, Judge Pauley's decision---like Judge Leon's before it---is just an amicus brief in that coming debate. Remember that as the conversation veers dramatically each time a district judge speaks.