FISA: 215 Collection

Where are the Section 215 Cases -- and What Impact Will They Have?

By Orin Kerr
Friday, March 27, 2015, 3:12 PM

Section 215, the law that has been interpreted to authorize the controversial bulk telephony metadata program, will sunset in about two months -- on June 1, 2015 -- unless Congress acts. The White House recently confirmed that if Section 215 sunsets, the program will be shut down. I can't predict what Congress might do, but I think it's interesting to ponder one aspect of the story: Where are the circuit court rulings on Section 215, and what impact might their late arrival have on Congress and the Supreme Court?

Three circuits have heard oral argument on challenges to the bulk telephony metadata program. The Second Circuit held a long oral argument on September 2, 2014, almost seven months ago; the DC Circuit heard argument on November 4, 2014, almost five months ago; and the Ninth Circuit heard argument on December 9, 2014, almost four months ago.

So far, though, no decisions have been handed down. And there are only two more months to go before the provision sunsets. If none of the three courts weighs in before June 1, then presumably Congress's path won't be affected directly by the courts. After June 1, the question would become what happens to the circuit cases still pending. Some of them may become moot, depending on what Congress does or doesn't do.

On the other hand, one or more circuit courts might weigh in on the program, either soon or closer to June 1. It's very hard to game out the impact of those hypothetical rulings. The three cases, and the panels that heard them, are all different. The oral arguments gave hints, but no clear signs, about how the courts might rule.

But that's no fun, so let me offer some guesses to make this interesting. Based on the oral arguments, my entirely speculative guess is that the Second Circuit is likely to reach the statutory issue but not the constitutional one and conclude that the program is not authorized by statute. On the other hand, my entirely speculative guess is that the DC Circuit and Ninth Circuit are likely to reject the constitutional challenges, either on standing or 'search' grounds, without weighing in on the statutory issues.

If my guesses are right -- a big if, of course -- the Second Circuit's case is the one most likely to impact the congressional debate. A ruling by the Second Circuit rejecting the statutory basis of the program, just weeks before the program sunsets, would be a big deal. The Second Circuit would presumably stay any ruling pending appeal, and given the timing, we would hit June 1 before the stay ran out. So the ruling wouldn't directly stop anything. But it could give Section 215 opponents in Congress significant ammunition to oppose renewal. And as a practical matter, Congress would probably have to assume the correctness of the Second Circuit's statutory interpretation if the votes are there for some kind of compromise legislation that retains some aspects of the program.

Finally, the prospects of Supreme Court review any time soon seem relatively remote. Because the current version of Section 215 will sunset before the Supreme Court can act, I don't see the Court interested in the statutory issues. The Ninth and DC Circuit cases might get bounced on standing grounds, so we might not get rulings on the Fourth Amendment questions. Even if we get rulings on the Fourth Amendment questions, I doubt the Supreme Court would be eager to step in unless a circuit court rules the program unconstitutional. There are just too many moving parts, and the records at this point are pretty weak.

If any circuit enjoins the program on constitutional grounds, then the Supreme Court would very likely grant cert if DOJ asks them to do so. But even such a circuit ruling might not lead to Supreme Court review in light of the sunset. If the program is not renewed, or is renewed in substantially modified form, it's not clear what would be enjoined. The matter may very well get resolved in the lower courts without the Supreme Court stepping in.