Kevin Schofield's writings, observations, and other pointless distractions
Yesterday the 2nd Circuit Court of Appeals ruled that the government’s broad collection program of telephone metadata — involving both international and domestic calls — is illegal. The opinion is lengthy and tackles several issues, and is worth picking apart a bit.
It’s worth pointing out at the outset that the Obama Administration, who not only has continued this Bush-era odious practice but is now vigorously defending it in court, has put forth some extreme, if not outright ridiculous, notions in its arguments. But we’ll see those shortly.
This has all come about because Edward Snowden leaked documents showing that the executive branch agencies have used the PATRIOT Act to issue broad collection orders to telecoms companies. They got the FISC court, a special, secretive court that deals with intelligence and surveillance related issues, to approve them. That in itself is not surprising, as the FISC court is known to approve nearly everything handed to it.
The first issue: do the plaintiffs, in this case citizens who have had their records collected, have standing to sue and to ask for an injunction to stop the collection? To get that, they have to show injury. The government argued — while admitting that citizens’ metadata had been collected — that because the citizens can prove that federal agents ever actually searched their metadata. They just collected and stored it, which is different. The appeals court rejected that argument, pointing to the laws against illegal “search and seizure” and calling the collection a “seizure.” So in fact there is injury, and the plaintiffs can sue.
The trickier issue turned out to be whether citizens can sue in district court (and whether a court of appeals can hear the case). The government argued that only the FISC court can hear these cases, and only the special appeals court that sits over the FISC court can hear appeals. Answering this question required some very careful parsing of the laws on the books, related to what federal courts have jurisdiction over. Generally speaking, federal courts hear issues of federal laws and/or involving actions of federal agencies. But the laws governing domestic surveillance from the 1970’s, as well as the PATRIOT Act, carve out a specific role for the FISC court in hearing challenges to those laws. But here’s the tricky part: Congress generally believed that the targets of those surveillance activities would almost never become aware of them, so the law was written to deal with the recipients of data-collection orders: telecom companies and the like. If Verizon receives a surveillance request from the FBI or the NSA, it can only challenge it in the FISC court — the law is very clear on that. But it says nothing about which courts can hear challenges from targets of surveillance. The district court ruled that the correct court to hear citizen challenges is the FISC court; the appeals court disagreed and said that because there is a presumption that citizens can challenge federal agency actions in court, and the law did not explicitly name the court with jurisdiction (though it does explicitly say how classified information should be handled independent of the court trying the case) then citizens are free to sue in federal district court.
The third issue is then whether the broad data-sweep is illegal. And this could potentially be decided at two levels: does it violate the PATRIOT Act, or does it violate the Fourth Amendment. The appeals court ruled that, despite the fact that the collection orders were approved by the FISC Court, they clearly go beyond the boundaries set by the PATRIOT Act since that law only allows for collection related to a specific investigation, whereas the collection orders gathered and retained data in anticipation of future investigations. But they didn’t reach a conclusion on the constitutional issue — though they wrote a nice laundry list of the issues that would need to be weighed if they had done so. It’s complicated.
So what happens from here? We should absolutely expect the government to appeal to the Supreme Court, and in particular on issue #2: can district federal courts (and circuit courts of appeals) hear cases like this. But it might be moot: the PATRIOT Act expires at the end of the month. Congress might let it expire (not bloody likely). They might also fix some of the issues raised by the appeals court, such as explicitly naming the jurisdiction for challenges to data collection orders by citizens. I imagine there are all sorts of interesting conversations happening on Capitol Hill today. Stay tuned.