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I agree with much of what John Yoo says in his recent post about “the blindness of the left… to the dire threat of foreign terrorism that has appeared again on our shores.” Although I disagree with his conclusions, John does an excellent job of laying out the policy reasons why he thinks the federal government should engage in bulk data collection.
But the policy arguments should be irrelevant to our analysis of the Second Circuit’s decision in ACLU v. Clapper. The question before the Court was simply whether the bulk data collection program is authorized under statutory and constitutional provisions. Surely, conservatives don’t want judges substituting their own policy preferences for the plain language of the law. And on the basic legal question before it, the Second Circuit got it right.
Section 215 of the PATRIOT Act allows the government to seize “any tangible things” but only when the FBI can establish that the “things” sought are “relevant to an authorized investigation.” The bulk data collection, however, is not connected to any ongoing investigation: it is data that is collected in the event that it may come in useful in some future investigation (and, in the meantime, is shared with other law enforcement officials to make arrests that they couldn’t make if they had to get warrants). So, on the plain language of the statute, the government’s program fails, as has been argued by Randy Barnett and Jim Harper, not exactly wild-eyed liberals.
Even if you could shoehorn the bulk data collection program into Section 215, I agree with the Court that the program raises serious constitutional issues (although the court did not have to decide the constitutional question given its decision on the Section 215). Barnett and Harper put it succinctly:
The Fourth Amendment requires the things to be searched or seized under a warrant to be described “particularly.” But the order issued to Verizon under the NSA data collection program requires the company to produce “on an ongoing daily basis… all call detail records.” Because they are not “particular,” such orders are the modern incarnation of the “general warrants” issued by the Crown to authorize searches of American colonists. As with general warrants, blanket seizure programs subject the private papers of innocent people to the risk of searches and exposure, without their knowledge and with no realistic prospect of a remedy.
No doubt, the terrorist threat is serious, but every serious departure from the Constitution has been justified as a necessary response to some emergency or another, from the Sedition Act to the New Deal to the internment of Japanese Americans, etc.
But the constitutional issues are for another day. The first step is for Congress to set the policy by either abolishing, or not, the bulk data collection program. If the program is expressly authorized by Congress, then the constitutional question will be ripe and we can see which view of the Fourth Amendment prevails.
Image Credit: “National Security Agency headquarters, Fort Meade, Maryland” by Unknown – http://www.nsa.gov/about/photo_gallery/gallery.shtml. Licensed under Public Domain via Wikimedia Commons.