Following last Thursday's federal appeals court decision, the
Congressional Research Service (CRS) has
issued a legal sidebar on the possible impacts of this Second Circuit ruling against bulk collection on
USA PATRIOT Act reauthorization:
On May 7, 2015, a federal appeals court issued a decision in American Civil Liberties Union v. Clapper that could have significant implications for both the telephone metadata collection program operated by the National Security Agency (NSA) and the legislative debate surrounding consideration of the USA FREEDOM Act of 2015 (H.R. 2048 S. 1123) currently taking place in the House and the Senate. While the ruling did not reach the question of whether the collection itself was a violation of the Fourth Amendment, the court did reject the government's use of Section 215 of the USA PATRIOT Act of 2001 (as amended) to effectuate the bulk collection of telephone records by the NSA.
The court in
ACLU v. Clapper held that the government failed to show that bulk telephone records held by telephone service providers were relevant to an authorized foreign intelligence investigation, as required by Section 215 of the PATRIOT Act.
According to the CRS, "the decision will have a substantial impact on the current legislative debate surrounding reauthorization."
The decision does not immediately bar operation of the NSA telephone metadata program, the CRS report stated, since "the court neither ordered the government to cease operation of the NSA telephone metadata program, nor to cease collection of telephone records in bulk under Section 215." Rather, the federal appeals court sent the case back to the district court to determine if a preliminary injunction is required in the case at hand.
As well, the CRS legal analysis notes that the "decision is based on statutory language that can be amended by Congress ... the court reached its decision after concluding that the government had not met its statutory burden of showing that the bulk telephone records were 'relevant to an authorized investigation,' as required by Section 215. The court acknowledged the argument that such collection may be a violation of the Fourth Amendment, but did not reach the merits of that question."
The court also discussed "the ongoing legislative debate surrounding potential reform of Section 215" and made the strong suggestion that Congress -- instead of the judiciary -- "is the more appropriate forum for balancing the unique national security and privacy interests at stake with this and other foreign intelligence programs." This commentary by the court places the ball back in the court of the legislators when it comes to some of the more contentious issues involving the bulk collection programs.
The CRS analysis goes on to state that "if the decision is upheld, or adopted by other courts, it may change what a 'clean' reauthorization [of Section 215 of the PATRIOT Act] means." Before the court decision, it was widely held that "a reauthorization of Section 215 without substantive amendment would allow the NSA telephone metadata program to continue without modification." However, following the federal appeals court decision -- the CRS authors say -- "a clean reauthorization would be, at most, a continuation of the status quo ... preserving the NSA program's use of Section 215 while the litigation surrounding the issue progressed."
