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Last week, the Second Circuit Court of Appeals issued an exhaustive opinion in which Judge Gerard Lynch held that the bulk collection of metadata by the National Security Agency (NSA) was not authorized by Section 215 of the Patriot Act. That provision provides in so many words that the Director of the FBI or his designated agent may:
…make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
At issue in this decision was whether this language was sufficiently broad to permit the vast collection of the metadata and, further, whether and when the individuals who claim grievances for those collection activities are in a position to challenge the standard practice of the NSA under these sections.
The question of standing is one for which current legal doctrine, with its insistence that the applicant show some particularized personal injury, is singularly unsuited. Judge Lynch finessed this problem by indicating that the comprehensive collection of the data means that everyone has some kind of particularized injury under the statute, so that the standing inquiry poses no limitations at all.
For better or worse, this nice sleight of hand reaches the right result. I do not think that the collection of data that has not been used at all counts as any kind of injury. But I also don’t think that the injury requirement makes any sense when any individual wants to challenge the structural integrity of a government program. It is common today under state law for any state citizen or taxpayer (it hardly matters which) to be able to show that the government has exceeded its statutory or constitutional authority. It would be an enormous advance in federal jurisprudence if the Supreme Court would jettison once and for all its tattered standing doctrine, which stands in the path of adopting a similar practice.
There is a further question here: whether Congress can prohibit individuals who are subject to investigation from bringing one of these challenges. There is usually a strong presumption against blocking judicial review unless it is manifestly authorized by statute. Again, I am most unhappy with this basic view. Where there are questions of whether Congress has exceeded its power, the correct response is to let anyone make the facial challenge alleging that the nature of the program exceeds the apparent authority. In that set of circumstances, there is no need to delve into the particular circumstances of any given investigation in order to answer the question. With some high-stepping, Judge Lynch concluded that the simple fact that the Congress authorized the recipients of collection orders (e.g., the telephone companies) to make the challenge did not block individuals whose data was collected from making different challenges on different grounds. Even if Congress was explicit that no such challenges should be brought, I think the federal courts should always be open to a facial challenge intended to expose the excesses of the administrative state.
The hard questions, therefore, are those that go to the merits of the individual claim that the data collection was a serious invasion of privacy that marks an overreaction to the dangers of terrorism. There is, and ought to be, an extended public discussion as to whether this has indeed happened, and just that debate is now being had in Congress given that Section 215 of the Patriot Act is up for renewal or modification by June 1.
In my view, that debate should take place against a different background. I think that the language of the relevant section of the Patriot Act did authorize the NSA’s metadata program. So, on the merits, I think that the Second Circuit was wrong.
The key element in this case rests on the basic design of the Patriot Act, which received scant discussion in the Second Circuit case. The basic plan was to allow the government to collect lots of information about foreign persons and to protect United States citizens and residents by a process of “minimization,” under which listening into conversations with foreigners was to be limited in ways that did not expose American citizens and residents to the prying ears of the NSA unless there was some explicit order based on a particularized suspicion to carry that inquiry forward. The whole point of this rule was to cut down sharply on the dangers that the collection of this information would lead to a wholesale examination of the content of these conversations in ways that would compromise privacy interests unless the government could make a much more exacting case for getting that information.
If I thought that the barrier that had been put into place had been consistently breached by the NSA without response or oversight from the courts, then the direct threat to privacy would lead me to either strike down the program or, more sensibly, to require the NSA to take steps to ensure that these breaches did not occur. Yet there is not one word in the Clapper opinion to suggest that the NSA has not observed the statutory limitations on the operation of its process. The statutory check that has been put into place has thus held.
Knowing that, the correct response is to hold that any form of injunctive relief should be denied because of the want of imminence of an individual injury calling for judicial intervention. Of course, the government could suddenly reverse course and allow for massive abuse of the current data. But if it has not done so since 2001, how likely is it that it will suddenly reverse course?
At this point, the hard question is whether keeping the data makes any sense. In his opinion, Judge Lynch insisted that the key argument against statutory authorization is that information is not “relevant to an authorized investigation (other than a threat assessment)” because its scope is not defined by the occurrence of a particular act, and thus pushes the notion of relevance far wider than is normal. But this view of the matter is consistent with the basic structure of the Patriot Act.
We give the broader power to collect this information because we have no idea of what will prove relevant in any particular case. As long as the information is kept under lock and key, why not collect this information if it could prove relevant at some future time? It is, of course, highly unlikely that any given piece of information collected will prove helpful, but the broad database might prove useful when a major danger arises in the future.
I think that John Yoo, quoting Judge Richard A. Posner, is right to note that these investigations are, by nature, different from those of completed crimes. As long as an authorized investigation is one that is designed to obtain “foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities,” then the generic meaning of the term ‘investigation’ is displaced by the remainder of the sentence. Protection against international terrorism or clandestine intelligence activity is a far broader objective that cuts against the more limited statutory reading.
In this regard, I disagree with Adam Freedman, who quotes Randy Barnett and Jim Harper for the proposition that Section 215 is a modern incarnation of the general warrant used in the English case of Entick v. Carrington, decided in 1765, to ransack the plaintiff’s place of business. In that instance, there were no protections whatsoever with respect to papers that were taken and examined willy-nilly. In this case, there are institutional safeguards in place, which have, to date, held.
Indeed, it is worth asking just what should be done if Section 215 is not renewed. The usual rules for the investigation of completed crimes are woefully narrow, and it is not clear exactly how far they will be extended if the Congress does not act. To be sure, there is nothing about Clapper that precludes a reinstitution of the old Section 215 under words that make it even clearer that it means what it says. But my fear is that the underlying attack on the Section will lead Congress to reject it in favor of something more restrictive than the limitations that the Obama Administration has placed on the current procedures. I think this would be a serious mistake. It is easy to attack government when its safeguards fail. But it is unwise to attack it when they succeed.Published in