AG, DNI and Judiciary Agree that Congress Should Take Action to Reform Section 215
Efforts to end bulk surveillance under Section 215 of FISA picked up some momentum last week thanks to two legal developments. First, Attorney General Holder and Director of National Intelligence Clapper sent a letter voicing support for Senator Leahy’s current version of the USA Freedom Act. Second, the Second Circuit Court of Appeals heard oral arguments in ACLU v. Clapper on the legality of bulk collection under Section 215. At this point, it appears that the executive, legislative and judicial branches all believe that a legislative change is the best solution for addressing the legal challenges that have been raised with regard to the use of Section 215 for collection of bulk telephony metadata. Also, at the end of last week, a coalition of over 40 privacy and civil liberties groups and companies sent a letter urging that the Senate take action on the USA Freedom bill as currently written.
The version of the USA Freedom bill endorsed by the AG and DNI contains limitations that would end bulk collection and require the government to use specific selectors when requesting call data from providers. In addition, the bill adds similar limits to National Security Letter provisions and the FISA Pen Register/Trap and Trace provision; and introduces additional reforms including the creation of a special advocate to represent civil liberties concerns before the FISA court, additional government oversight and reporting mechanisms, requirements for declassification of FISC decisions, and guidance for companies publishing transparency reports. Despite these reforms, including the requirement of specific selectors that are tied to foreign intelligence targets, the AG and DNI concluded that the bill strikes the right balance between allowing the government to continue a critical national security program with the necessary speed and efficiency while improving protections for individual rights.
On Tuesday, when the Second Circuit Court of Appeals heard arguments on the legality of the government’s bulk telephone metadata collection program under Section 215 of FISA in the ACLU v. Clapper case the court seemed to crave a legislative solution that would help them avoid the necessity of making a decision on the statutory and/or constitutional claims related to the bulk telephony program. The hearing had moments of levity, but the panel clearly took the issues in front of them very seriously and spent 1 hr. 45 minutes grilling the government and ACLU on key aspects of the case. In addition to surveillance reform, the continued relevance of Smith v. Maryland with advances in technology, and the potential application of the government’s argument to other types of records were important themes in the panel’s questions.
As a preliminary matter, the court is going to have to decide whether it may consider both the ACLU’s statutory and constitutional arguments, or as the government contends, only the constitutional issues. The ACLU argues that the court could find in its favor on narrow statutory grounds, that the bulk metadata collection program exceeded the scope of what was authorized by the statute by going far beyond what was intended by the term “relevant.” The court may be inclined to seriously consider the ACLU’s view, given concerns it raised regarding the doctrine of constitutional avoidance and the significance of a decision on the applicability of the third party doctrine as spelled out in Smith v. Maryland to the facts of this case.
The panel seemed particularly concerned that the government’s arguments upholding the legality of the telephone metadata program could be applied to other types of data stored with third parties such as banking records and credit card transactions. The government tried to distinguish the telephone context from the other financial arena, but the panel seemed somewhat skeptical that the differences were significant and indeed seemed to hold some concern of a “slippery slope.”
The court also spent some time looking at potential deficiencies in Section 215 as used for bulk collection. They questioned the government about minimization procedures and suggested that they should be in the statute because the FISA court appears to have largely accepted the government’s proposed limitations on the program. In an ironic moment, the government cited two recently declassified FISA court decisions censuring the government for not following its own minimization procedures and requiring changes as proof that there is effective oversight by an Article III court. In an aside, one of the judges also commented on the ex parte nature of the FISA court proceedings and expressed his personal view that there should be a special advocate. The panel as a whole seemed concerned about the secretive nature of the process and how well Congress, the public and the court can understand the program and its implications when the only information they are privy to is what the government has chosen to declassify in response to the Snowden leaks. Many of these areas of concern for the court would be addressed by the Leahy version of the USA Freedom Act.
In closing, the government argued that the bulk collection program is constitutional because when considering the totality of the circumstances, government’s need exceeds the privacy interests at stake especially considering the third party doctrine, the special needs doctrine, and the government’s limited use of the data collected. The court summarized what the government was saying as basically that the program can be constitutional without leaving people with a “warm fuzzy feeling.” The ACLU rebutted this by reminding the court that if they accept Smith v. Maryland and the applicability of third party doctrine that none of the minimization procedures and other limitations that the court seemed concerned with would be required by the constitution.
Although the panel seemed genuinely concerned about the issues raised with the program both as a statutory and constitutional matter, it is difficult to predict how they may decide. If Congress were to use the AG and DNI’s endorsement of USA Freedom to move surveillance reform along before they need to render an opinion, the panel would seemingly view that as the best possible outcome.