A federal appeals court limits the Patriot Act's scope

This week, the U.S. Court of Appeals for the Second Circuit issued a decision in which it found the NSA’s “bulk telephone metadata collection program” to be exceeding its statutory authority under the Patriot Act, and asked Congress to step in and explicitly authorize the program or do something else entirely.

It’s important to know what the NSA’s telephone metadata program doesn’t do: it doesn’t affect cell phones, used by most Americans, and it doesn’t record the content of any calls made by land-line.  The “spying,” to use the term embraced by the media since the revelation by former NSA employee Edward Snowden of the program, is confined to the calls’ times, dates, length, and phone numbers, which are assembled into a central NSA searchable database.  The program was designed to thwart terrorists plotting against the United States by finding calling patterns symptomatic of such plotting.

The ACLU, which brought the lawsuit against the government, buttressed its briefs with extensive constitutional arguments, but the Court disregarded them all.  It held that that it need not reach those weighty questions.  A much simpler problem is present, the Court found: the USA Patriot Act does not, under its own terms, allow for such a bulk random collection of metadata. 

The “authority” phrase in the Patriot Act is under section 215, which allows the government to...

... 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[.]

The application to a court is supposed to include (emphasis added):

... a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized…to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.

The lower courts have routinely authorized these applications.  But the key question is obviously: what does the term “relevant to an authorized investigation” mean?  The government always took the position that this meant, basically, whatever it says is relevant.  The Court characterized this:

... the metadata are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant.

The holding found that this went far beyond what even broadly construed grand jury subpoenas generally vacuum up, not just in quantity (“all” calls within the United States, a staggering amount of data), but in quality, too.  Randomly collecting metadata on everyone’s calls has little to do with any specific “authorized investigation.”  The government hasn’t “attempted to identify” to what particular “authorized investigation” the bulk metadata of virtually all Americans’ phone calls are relevant.  The Court found that “such an expansive concept of ‘relevance’ is unprecedented and unwarranted.”

The Court did not get into what sorts of surveillance programs might be constitutionally allowable and did not order the NSA program to be shut down.  The Court instead asked Congress to address the issue with a new law, which may or may not happen, and so the decision is likely to be of limited direct impact.

But surely it is worth reflecting that the Founding Fathers would have gasped at such an expansive role for the government, particularly one conducted in secret and with such a slender legal rationale.  Congress must act to restrain.

Christopher S. Carson is a lawyer in private practice and holds a masters’ in national security studies from Georgetown University.