FISA: 215 Collection

Thoughts on the CA2 Argument on Section 215 in ACLU v. Clapper

By Orin Kerr
Tuesday, September 2, 2014, 5:09 PM

I just finished watching the video of the Second Circuit's argument in ACLU v. Clapper, the challenge to Section 215.  Here are a few impressions.

While I don't have a strong sense of how the court will rule, there was a lot of attention to the statutory question (does Section 215 authorize bulk collection?) and relatively less attention to the constitutional issue (does bulk collection violate the Fourth Amendment?). The judges on the panel seemed skeptical of the government's statutory interpretation and also skeptical of the idea that the statute precluded judicial review.

Judge Lynch, who was the most active questioner, repeatedly floated the idea that the doctrine of constitutional avoidance should play an important role in the court's analysis. (See 0:59, 1:10, 1:32)  I gather his thinking was that the doctrine should be used to allow statutory review of the program, at which point the court could enjoin the program on statutory grounds without reaching the underlying Fourth Amendment question.

I wonder how it would play out if the Second Circuit goes that way. Imagine the Second Circuit enjoins the program on statutory grounds and the Supreme Court grants cert, staying the Second Circuit's ruling while the Supreme Court considers the case. Section 215 sunsets on June 1, 2015. Even if the Court can decide the issue in the coming Term, the Court is unlikely to rule before Congress acts.

Alternatively, perhaps the Supreme Court stays out to avoid ruling on a case that is so time-bound. But that creates a puzzle, too.  If the Second Circuit enjoins the program but the DC Circuit rules it is lawful, what does the government do if the Supreme Court doesn't review the case?  Along those lines, the 29 minute mark, Judge Sack pondered the idea of perhaps ruling that the program is unlawful but staying the court's own ruling given the pending litigation elsewhere. If the Second Circuit ends up enjoining the program on statutory grounds, I'm not sure how these procedural questions will play out.

My own particular interests focus on the Fourth Amendment more than the other issues, so here are some more detailed thoughts on the discussions relating to the Fourth Amendment:

Judge Lynch raised the question to the ACLU at the 39-minute mark of whether the existence of statutory authorization might be relevant to the constitutional question: In other words, does the absence of a clear statutory authorization for surveillance make any expectation of privacy reasonable? ACLU's counsel didn't have a good answer, but I think it's worth noting that Supreme Court precedent appears to preclude that idea. The Supreme Court has indicated that statutory privacy laws and the Fourth Amendment are independent of each other. See, e.g., City of Ontario v. Quon, 560 U.S. 746, 764 (2010); Virginia v. Moore, 553 U.S. 164, 168 (2008); California v. Greenwood, 486 U.S. 35, 43 (1988).

That's very sensible, I think. Otherwise, you need to reanalyze the constitutional question every time a statute is changed or a statutory power sunsets.  There would also be an extra-strong incentive for the government to oppose privacy statutes to avoid the half-loaf of a statute morphing into a full-loaf of constitutional protection.

Judge Sack raised the question at 1:21 of whether modern metadata analysis allows the government to get content, distinguishing Smith. In my view, the answer is clearly "no," as there's a big difference between getting hints as to contents and actually obtaining those contents. As Stuart Delery mentioned for the government but didn't really drive home, metadata analysis has always given clues about content.

For example, back in the old days, colleges used to send out acceptances in big envelopes packed with promotional materials. Rejections were sent in a thin envelope with a 1-page letter. By looking at the outside of the mailing, you could pretty much know what was inside. But that didn't mean that the government needed a warrant to see the outside of the mailing, or that observing the outside was the same as opening up the envelope. There's still a fundamental distinction between the metadata analysis (seeing the outside of the envelope) and the content analysis (opening up the letter and directly seeing the contents). And that's the same today with phone calls or e-mails as it has always been with letters.  Obtaining hints as to likely content is not the same as actually obtaining content.

Judge Lynch asked the ACLU  at the 24-minute mark about the telephone providers' ability to conduct its own metadata analysis and reveal that information to private parties. That led to a rather odd discussion of whether such a procedure would be prohibited by Terms of Service or the Stored Communications Act. The discussion was odd because it's seemingly irrelevant to the Fourth Amendment analysis, at least under current Supreme Court doctrine. It also included a misstatement by Judge Lynch. At one point, Judge Lunch suggests that the SCA would prohibit private providers from disclosing all of its customers' metadata to a private entity. But that disclosure is clearly allowed under the SCA under 18 U.S.C. 2702(c)(6), which allows disclosure of non-content records to anyone other than a government entity.

Finally, Judge Sack asked whether Edward Snowden's disclosure of the NSA surveillance meant that there was no expectation of privacy any more. That is, does knowing of the monitoring mean that the monitoring can't violate the Fourth Amendment? I think the correct answer is that the disclosure of the monitoring is irrelevant to the Fourth Amendment question. Footnote 5 of Smith v. Maryland lamely suggests that this is so because the two-part test of Katz is "inadequate" to resolve the Fourth Amendment question when the surveillance is known. As I explain in this forthcoming article, though, the real reason disclosure is irrelevant is that what people actually anticipate will happen is irrelevant to the Katz inquiry.