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The Conceptual Difficulties of the NSA Case
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 General, Law
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?
Thank you professor.
I do not believe we can say often enough that there is no evidence this program has been misused.
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?
Thanks to anonymous, I’ve spent too much time recently reading Boris Chertok’s Rockets and People. Descriptions of the generations-long record keeping used to denunciate Soviet citizens during the various purges, convictions, “disappearances”, etc. has me examining our own world and it’s slide away from freedom. When will my Ricochet postings be conjured up to imprison my grandson or deny him access to a state-sponsored school?
Now, where did I put my tin foil……..
Why stop at telephone and email metadata? Why not include the contents of the conversations as well, assuming storage space can be built, and apply the same standards to investigate?
After all, I’m sure doing so would greatly further the goals the government cites.
More broadly, I do not wish to be protected this way.
There is little about Islamic terrorism to suggest that it cannot be fought without these sort of powers. If ISIS followers are busy publicly retweeting each other, there’s no need for this sort of thing and I’m more than a little queasy at all the instinct to scramble to find justifications for why it’s totally okay for the government to collect information on citizens like this.
I realize this is more of political than a legal argument.
There is little about Islamic terrorism to suggest that it cannot be fought without these sort of power.
Tom, do you honestly believe you are in a position to know this?
Of course, there isn’t evidence of abuse. The information and its pre-trial uses are secret! Our intelligence agencies are not in the habit of publicizing their investigations. So how would a citizen identify and prove abuse?
It’s “metadata”, which means that it can be used to connect individuals and groups to others and trace their communication history, even if they cannot identify the content of those interactions in detail. Like a policeman entering into a private space without permission or warrant, finding a suspicious character, and then basing a by-the-book investigation on that illegally acquired knowledge, the NSA program enables to policing officials to make connections by unConstitutional means… and the target of the investigation would never know how he became a person of interest.
In all of this, I have yet to hear why the qualifier “tangible” is being ignored. If “tangible” items can include digital information, then why else is the word included in the law?
The assumption of any lawyer should be that every word in a law was put there deliberately.
Like a policeman entering into a private space without permission or warrant, finding a suspicious character, and then basing a by-the-book investigation on that illegally acquired knowledge, the NSA program enables to policing officials to make connections by unConstitutional means… and the target of the investigation would never know how he became a person of interest.
Where is the private space you are referring to?
Do I have expert knowledge in the matter? I do not. But what I have seen over the last fourteen years gives me precious few reasons to suppose otherwise, and I try to pay some attention to these matters.
In a republic, citizens should not only be expected to be able to make informed assessments of foreign threats, but should be required to do so, and their choice in representatives should follow. We don’t have to know everything to be informed and — obviously — there are many particulars that are best to remain in secret.
Moreover, it may simply be that my tolerance for risk of attack is higher than those entrusted with our security; perhaps one or two small attacks is worth the net gain in liberty. This is neither surprising, nor nefarious. Experts are — almost by definition — narrowly focused on a single subject. Fire wardens are famously obtuse regarding practical matters because their professional lives are focused around ensuring safety. This doesn’t mean that we shouldn’t listen to fire wardens, but we shouldn’t be too quick to defer to their judgement.
Do I have expert knowledge in the matter? I do not. But what I have seen over the last fourteen years gives me precious few reasons to suppose otherwise, and I try to pay some attention to these matters.
In a republic, citizens should not only be expected to be able to make informed assessments of foreign threats, but should be required to do so, and their choice in representatives should follow. We don’t have to know everything to be informed and — obviously — there are many particulars that are best to remain in secret.
Moreover, it may simply be that my tolerance for risk of attack is higher than those entrusted with our security; perhaps one or two small attacks is worth the net gain in liberty. This is neither surprising, nor nefarious. Experts are – almost by definition — narrowly focused on a single subject. Fire wardens are famously obtuse regarding practical matters because their professional lives are focused around ensuring safety. This doesn’t mean that we shouldn’t listen to fire wardens, but we shouldn’t be too quick to defer to their judgement.
People who are in a position to know, on both sides of the political divide, have concluded this program is useful. They understand the nature of the threat in a way you cannot and I would argue should not.
I guess my problem is I see no virtually loss in liberty by the existence of this program. I have never equated my relationship with my phone company to that with my priest, my doctor, or my wife. I do not expect the information I give them to have any special level of protection except when the law already provides it. That is, I do not expect them to publicize my SSN as I gave it to them for explicitly defined reasons.
As I recall, courts have already ruled that though an infrared camera can be used to detect events inside a home while the policeman is situated in a public space (the road), much like watching events through a window (which is legal), that constitutes an invasion of privacy and thus requires a warrant.
Similarly, though telephone conversations and online communications are facilitated by public networks and corporate contracts, citizens have a clear expectation of privacy.
If citizens assent to their representatives limiting the definition of privacy to only one’s unspoken thoughts and to what one says within at home with the doors and windows shut, then that’s democracy for you… but their fools. In the meantime, I think most citizens demand a little more.
As I recall, courts have already ruled that though an infrared camera can be used to detect events inside a home while the policeman is situated in a public space (the road), much like watching events through a window (which is legal), that constitutes an invasion of privacy and thus requires a warrant.
Similarly, though telephone conversations and online communications are facilitated by public networks and corporate contracts, citizens have a clear expectation of privacy.
The Supreme Court has also ruled that this type of information, who called whom, when, for how long (not content), is not protected and can be obtained without a warrant.
OBJECTION! This information was not collected not for the purpose of legal proceeding but for counter-terrorism. Put another way, this is national defense concern, not an Article III concern. This is why the metadata is collected by the NSA, doesn’t require a warrant and so on.
I am not 100% sure, but I believe that this information would not be admissible in court anyway because it was obtained without a warrant. This means that this information can have no “pre-trial use”. But this is OK because if parrying a jihadist attack results in dead jihadists then we’re not going to need to try them anyway. On the other hand, If this intelligence results in investigating a brewing jihadist plot then we might have time to get warrants, obtain sufficient evidence to arrest them. If so, then we can try them.
Also, if the govt managed to keep this speculated abuse secret then that might be the only thing it has managed to keep secret in the age of Snowden and Manning. Put another way, a lack of evidence of abuse is consistent with lack of abuse.
That’s an odd way to describe it, given that the phone companies are compelled by law to hand over all such records.
That’s an odd way to describe it, given that the phone companies are compelled by law to hand over all such records.
I’m missing the connection. Would you be happier if the phone companies simply gave the NSA the data in the absence of any law?
I would prefer them and I to have some input in the matter.
I would prefer them and I to have some input in the matter.
I can understand them (the phone companies) having input as it is their data but I suspect they did. If I had to guess, the law was put in place to protect the phone companies from unmerited (IMHO) but still expensive lawsuits from customers.
Perhaps those customers are citizens who do not want the government to have this power.
I’m more than a little tired of the patronizing attitude the intelligence agency’s give off that the government’s responsibilities to protect its citizens override any (supposedly) naive concerns they might have about their liberty; who works for whom here, anyway? Obviously, this is more of a political than a legal failure, but it’s no less frustrating for it.
And yet there have been many reports (of arguable credibility, obviously) from journalists about the NSA sharing this metadata with police agencies for non-terrorism cases. And I don’t mean FBI, CIA. I’m referring to city and county investigations.
But perhaps that’s a separate issue.
Perhaps those customers do not want the government to have this power.
I’m more than a little tired of the patronizing attitude the intelligence agency’s give off that the government’s responsibilities to protect its citizens override any (supposedly) naive concerns they might have about their liberty; who works for whom here, anyway? Obviously, this is more of a political than a legal failure, but it’s no less frustrating for it.
I do not know of anyone in the intelligence community who thinks how you claim. I will say, I know plenty who are confused by the reaction to this program. This is the kind of data the police (who are usually held to more stringent standards in criminal cases than the military during war) can collect from phone companies simply by going in and demanding it. In this case, they go to a court, get an order, and cannot even look at it until they satisfy yet another standard.
I forwarded our conversation to my My Assistant District Attorney Friend™ for comment, who responded as such:
I forwarded our conversation to my My Assistant District Attorney Friend™ for comment, who responded as such…
Interesting.
I’m not sure I buy into the argument that having more of something in and of itself changes the quality. In this case, I would say having a more refined data set particular to an individual is of greater value than a mass of unstructured data. That being the case, I would argue the need for a warrant when there is particular police in the specific information would be greater than in the NSA’s case.
Your friend is right however when he says the uses the police have for such information is different than NSA’s. They have radically different missions. The police are trying to solve a crime that has already occurred (hence the luxury of a known suspect) while the NSA is trying to identify a threat before he makes himself known by killing or helping to kill innocent Americans.
It also seems to me your friend is under the impression the NSA has analysts who are dedicated to analyzing this mass of data. That is simply not the case. The only time the NSA can access the data to analyze it is when they (just like the police) can identify someone who is under reasonable suspicion and they can only analyze the data set relevant to that person.
Richard should spend some time reading about parallel construction, and the court cases that detail how the NSA lies and covers up sharing just this sort of information in unconstitutional ways.
The crux of his argument is that this process works, but we know that it clearly does not.
Except we know this is baloney. I’ve provided evidence to you in many other threads that show that this is baloney, and yet you keep repeating it. For the audience who’d like to judge the veracity of Klaatu’s statements:
Here is another paragraph from that same article (emphasis mine):
The report makes no explicit connection between the DEA and the earlier NSA bulk phone surveillance uncovered by former Booz Allen Hamilton contractor Edward Snowden. In other words, we don’t know for sure if the DEA’s Special Operations Division is getting its tips from the same database that’s been the subject of multiple congressional hearings in recent months. We just know that a special outfit within DEA sometimes gets tips from the NSA.
It should surprise no one that there is some overlap between terrorism and drug investigations as there is a lot of overlap between drug running and terrorism.
But from a legal perspective, it’s night & day. And we have no idea what the NSA is really doing, because they keep lying about it:
All we know for sure is that your repeated assertions that everything is peachy at the NSA are baseless.
“NSA admits ‘mistakes’ amid criticism after audit shows it broke privacy rules“
But from a legal perspective, it’s night & day.
Not necessarily.
Please spare us anymore diatribes from the John Birch Society.
So I guess you’re entirely out of arguments, as you’re now resorting to ad-hominem attacks?
So just to finish my job with your credibility, here’s the commission appointed by law to oversee the NSA’s operations’ summary of the 215 program [pdf]:
Emphasis mine.
I’m not going to argue with conspiracy theorists, there is no future in it because lack of evidence as well as its presence always supports their conspiracy. The Birchers are conspiracy theorists and have been for years.
The last portion of your post is simply a legal argument regarding the statutory authority for the program. It has no bearing on whether the NSA was properly implementing the program. I personally believe no statutory authority is needed and the program falls under the President’s Article II war making powers but reasonable people can disagree…
The “legal argument regarding the statutory authority for the program” is the whole point of Epstein’s post. He argues they have it, the Second Circuit and the Privacy and Civil Liberties Oversight Board argue they don’t.
These are facts we’re discussing, not a conspiracy theory.
And if you want to make yourself look like a fool by claiming everyone who disagrees with you is a Bircher, then keep going.
The “legal argument regarding the statutory authority for the program” is the whole point of Epstein’s post. He argues they have it, the Second Circuit and the Privacy and Civil Liberties Oversight Board argue they don’t.
As I said, reasonable people can disagree. You were attacking the execution of the policy, not making a statutory argument against it.
These are facts we’re discussing, not a conspiracy theory.
And if you want to make yourself look like a fool by claiming everyone who disagrees with you is a Bircher, then keep going.
Conspiracy theorists always claim they are discussing facts. Usually they are lacking proper context or understanding of what the facts actually mean.
I have not claimed everyone who disagrees with be is a Bircher, the article you cited and linked to is from the New American, a Bircher magazine.