Unprecedented, Unwarranted, Unlawful: Federal Appeals Court Holds NSA Data Collection Illegal

05/08/2015 04:38 pm ET | Updated May 08, 2016

Can the government collect and store data regarding virtually all Americans' phone calls, on the off chance that it might be "relevant" to protecting us against terror attacks? In a carefully reasoned opinion, the Second Circuit Court of Appeals held that the answer is "no," concluding that nothing in the Patriot Act authorizes the NSA's bulk metadata program. While the court did not find it necessary to confront the constitutional arguments raised by the program's challengers, the Second Circuit's analysis exemplifies the judicial engagement required to keep the executive branch in check.

The facts: Section 215 of the Patriot Act permits the government to apply for "an order requiring the production of any tangible things... for an investigation... to protect against international terrorism or clandestine intelligence activities." To obtain a Section 215 order, the government must provide a special court -- the Foreign Intelligence Surveillance Court -- with "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation." Since 2006, the NSA has been collecting "on an ongoing daily basis" the "metadata" associated with telephone calls made by millions of Americans, to be stored and analyzed. "Metadata" includes details about length of calls, the phone number from which the calls are made, and phone numbers called.

The NSA program became public on June 5, 2013, when The Guardian published an order leaked by former government contractor Edward Snowden. The order required Verizon to produce call-detail records on all calls made through its systems or using its services where one or both ends of the call were located in the United States. Current and former Verizon customers sued, arguing that the program is not authorized by Section 215, nor permitted by the First or Fourth Amendments.

The Second Circuit began its analysis by laying bare the "staggering" scope of the metadata collection program. While the government insists that it does not collect cell-site-location information, metadata can provide information about the routing of a call through a telephone network, which can, in turn, convey information about a caller's location. While the government insists that it does not record conversations, metadata can reveal information that could traditionally only be obtained by examining the actual content of conversations. For example, the court explained, a call to a single-purpose "hotline" might reveal that an individual is "a victim of domestic violence or rape; a veteran, suffering from an addiction of one type or another; contemplating suicide; or reporting a crime." The NSA has been collected this information from millions of Americans for almost a decade.

Did Congress really authorize that? At first blush, the language of Section 215 appears ambiguous: What does it mean for "tangible things" to be "relevant" to an "authorized investigation"? The government argued that this language authorized the NSA to collect metadata if at any future time the records might become "relevant" to an "authorized" criminal investigation. That is, even if it was not relevant to any particular investigation that was "authorized" at the time that the data was collected.

The Second Circuit was not persuaded. The court honed in on the statutory language, focusing in particular on the word "relevant." Relevance, the court explained, refers to a defined standard used to evaluate grand jury and administrative subpoenas, as well as discovery requests in civil cases. In those contexts, a particular subject matter is under investigation -- a grand jury seeks to determine whether there is probable cause to believe that crimes have been committed and seeks records that are relevant to that inquiry. By contrast, the court observed, the government in this case "[did] not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry." Rather, the records are collected and stored "to be searched if and when at some hypothetical future time the records might become relevant to a criminal investigation." The court concluded that such records could not be considered "'relevant to an authorized investigation,' by any definition of the term." It further rejected the argument that the government's expansive interpretation of "relevant" was "legislatively ratified" when Congress reauthorized Section 215 in 2010 and 2011 (after the program had been in place for several years), stating that it "would ignore reality" to hold that Congress had "ratified" an interpretation "of which many members of Congress -- and all members of the public -- were not aware."

Because the Second Circuit concluded that the program was not authorized by Congress, it did not reach the issue of whether the program violated the First or Fourth Amendments. Further, as the court observed, the issue could well be rendered moot by Congress, which is presently considering a bill that would limit the metadata program in a number of respects. Nonetheless, the decision offers a sterling example of how reason-driven, context-sensitive judicial review can ensure that those responsible for enforcing the law are faithful to their charge. Judges must decline the government's all-too-frequent invitations to ignore reality.