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Civil libertarians have been celebrating the decision by the U.S. Second Circuit Court of Appeals that found that the National Security Agency was wrong in its assertion that Section 215 of the Patriot Act authorized its mass collection of telephone metadata.
People who hold that view might want to take a step back and give the situation another look, because the court gave them no immediate relief of any kind. In fact, all the decision did was to send the case back to a lower federal court with instructions to try again.
There are several things the Circuit Court could have done that it chose not to do. While the three-judge panel was unanimous in deciding that Congress had never intended for the NSA and other agencies to conduct those mass data sweeps, it chose not to do anything to stop them.
Part of the reason the judges decided not to take any further action such as imposing an injunction against the data collection is because the law is set to expire three weeks after the decision anyway.
In addition, Congress is in the midst of considering a replacement for that part of the Patriot Act, called the USA Freedom Act, which would make significant changes to the whole program, including a requirement to have warrants before any search of U.S. citizens’ metadata.
The court could also have decided that the metadata collection program was unconstitutional, but it didn’t do that either. There are other actions against the use of the metadata already working their way through the federal courts, so such a decision is possible there, but it’s by no means a sure thing. In any case, a decision about the constitutionality of data collection won’t happen right now. All that happened to this point was the remand back to a lower court.
In this light it seems that despite the headlines, the decision by the Second Circuit Court didn’t really do anything, but that’s not true either. The primary reason that the Second Circuit Court didn’t find on constitutionality of the NSA surveillance program is that such a decision wasn’t necessary for the court to do its job.
Instead, the court was able to accomplish what was needed by deciding that Congress hadn’t given the government the authority to gather metadata under the law and then to send it back to the lower courts for further action.
According to Courtney Sullivan, an attorney with Venable LLP in Washington, the NSA’s gathering of metadata can continue, at least until Section 215 expires on June 1. Sullivan is a former U.S. Department of Justice attorney who actively prosecuted terrorists and managed to get one of the Guantanamo detainees to plead guilty.
Court Opinion on NSA Phone Metadata Collection Won’t Soon Stop It
The Patriot Act, including the now infamous Section 215, was amended by the House of Representatives when it passed the USA Freedom Act a few days ago. Until the Circuit Court decision, passage of the Freedom Act in the Senate was considered by many to be unlikely due to the opposition of Majority Leader Senator Mitch McConnell, R-Ky., who wanted to reauthorize the Patriot Act unchanged. However, the court ruling could change that.
While Sullivan declined to say how she thought the Freedom Act would do in Congress, she did say that Congress would have to respect the court decision. This likely would mean that the few senators who have been fighting changes to Section 215 will agree to modifications such as those contained in the Freedom Act.
“A lot of people are trying to spin this in lots of ways,” said Ed Black, CEO of the Computer and Communications Industry Association. “I think the odds are pretty good that something close the current Freedom Act will pass.”
Assuming that the USA Freedom Act does pass the Senate and eventually becomes law, then what? The primary difference between the new act and practices today is that the NSA and other U.S. intelligence agencies would need a warrant to search for metadata, which would presumably be stored at the phone company.
“Certainly the more legal processes you have, rather than authorizing the metadata being within the NSA versus requiring the government to get a warrant for each selector for each search, the longer it takes,” Sullivan said. She said that while most of the metadata that the NSA and other intelligence and investigative agencies use isn’t particularly time-sensitive, there are circumstances where it can be.
Sullivan said that an example might be a situation in which investigators notice a sudden increase in telephone calls of a known terror suspect to the phone of a bomb maker in Yemen. Then, she said, time could be critical.
“Every time you have to go to seek a warrant, you have to have a representative of the government verify the information,” Sullivan said. “You must meet the statutory requirements, whatever the standard would be at the time.”
At this point, however, it looks as if the USA Freedom Act is more likely to pass than it might have been before the court decision. Whether this will solve the problems balancing communications surveillance against privacy remains to be seen.
For this reason, Black said that he hopes there’s a chance to take another look at it fairly soon. “We should have a reasonably modest term for sunset,” Black noted. That way, any changes can be made when and if the act is reauthorized.