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As Raffaela reported, on Friday Judge William H. Pauley III of the Southern District of New York held that bulk telephony metadata collection under Section 215 of the PATRIOT Act is lawful, and therefore granted the government's motion to dismiss in ACLU v. Clapper. (For additional analysis, please see Ben and Peter's posts.) BACKGROUND The opinion begins with a background on FISA that will be familiar to most Lawfare readers. (In fact, the opinion references David S. Kris's Lawfare Research Paper, "On the Bulk Collection of Tangible Things," an excellent resource for understanding the Section 215 debate.) Judge Pauley broadly construes the history of FISA, the FISC, and the PATRIOT Act amendments as components of an ongoing effort to balance transparency with the Executive's need for secrecy in the national security arena. In 1998, Congress amended FISA to allow the government to acquire business records from certain kinds of private entities if it could show "specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." Post-9/11, Congress expanded that authority in Section 215 of the PATRIOT Act. The latter authorized the government to require production of any tangible thing from any business, and did away with the requirement that the target be a foreign power or an agent thereof. The government---specifically NSA--thereafter repeatedly invoked this authority as a legal basis for collecting "virtually all call detail records or 'telephony metadata'"---numbers dialed, call duration, and so forth. Judge Pauley then describes the oversight of the program: "It is monitored by the Department of Justice, the Intelligence Community, the FISC, and Congress." To collect bulk metadata, "the Executive must first seek judicial approval from the FISC," and provide semi-annual reports to Congress on legal interpretations of Section 215. Such oversight, in Judge Pauley's estimation, is effective: for example, he notes that, when then-FISC Judge Bates had blasted the NSA for compliance problems associated with its bulk collection, NSA subsequently altered its collection approach and methods of querying collected data. The opinion then turns to some by now familiar history. In June 2013, The Guardian published the leaked FISC order compelling the bulk production of telephony metadata from Verizon to the government. Judge Pauley writes that, in response to the order's revelation, "the Government acknowledged that since May 2006, it has collected this information for substantially every telephone call in the United States . . . ." But though the metadata is collected, he goes on, "[t]he NSA may access the metadata to further a terrorism investigation only by 'querying' the database with a telephone number, or 'identifier,' that is associated with a foreign terrorist organization." The results of that query also include "second and third-tier contacts with the seed, referred to as 'hops.'" The background section concludes with the observation that "[b]etween May 2006 and May 2009, the NSA provided the FBI and other agencies with 277 reports containing approximately 2,900 telephone numbers." DISCUSSION Background matters handled, the opinion moves to legal matters. First among them: does the ACLU have the right to sue in the first place? Judge Pauley writes that "[b]ecause the ACLU has alleged an actual injury grounded in the Government's collection of metadata related to its telephone calls, it has standing." Specifically, "Article III standing requires an injury that is 'concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.'" The ACLU alleged that qualifying injuries resulted from the collection, querying, and resulting potential chilling effect of its call records as a Verizon subscriber. Here---and unlike plaintiffs in the Supreme Court's Clapper v. Amnesty International ruling, Judge Pauley notes---"there is no dispute the Government collected telephony data related to the ACLU's telephone calls." He further recharacterizes (and thus rejects) the government's argument that "merely acquiring an item does not implicate a privacy interest." This contention, according to Pauley, concerns Fourth Amendment rights, but not the ACLU's standing to sue.
Statutory ClaimsStanding, of course, is one thing; the ACLU's merits claims---statutory as well as constitutional---are another. The court starts with the plaintiffs' statutory argument---which runs headlong into the United States' general immunity from suit. Although the Administrative Procedure Act (APA) waives sovereign immunity in cases (like this one) that seek "relief other than money damages," Judge Pauley holds that Congress withdrew that waiver of immunity for suits arising from Section 215. Said differently, the court concludes that the ACLU cannot advance its argument that Section 215 does not, in fact, allow for the bulk collection of telephony metadata. 1) Section 702 Exception At issue is Section 702 of the APA. It states that a waiver of immunity is void if "any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." Judge Pauley holds that Section 215 of the PATRIOT Act is such a statute because it expressly limits the class of individuals that may challenge the legality of the order to those "receiving a production order." 2) Section 701 Exception Section 702 isn't the end of the story, however. There's also Section 701 of the APA. Among other things, the provision says a waiver of the government's immunity will be void if the relevant statute "precludes judicial review." So does FISA do just that? Answering the question, Judge Pauley finds relevant precedent in Block, a Supreme Court case which found that congressional specificity with regard to how one class of individuals may receive relief---when coupled with congressional silence as to the litigant's efforts to receive that relief---would bar a litigant's APA claim. This tracks Judge Pauley's reasoning: Section 215 of the PATRIOT Act, in the court's view, makes clear that a "person receiving a production order" may receive relief; and yet, overall, FISA is meant to "keep the means and methods of the Government's intelligence gathering efforts secret from its enemies." Thus, Judge Pauley concludes, "[a]llowing any challenge to a section 215 order by anyone other than a recipient would undermine the Government's vital interest in keeping the details of its telephone metadata collection program secret. It would also---because of the scope of the program---allow virtually any telephone subscriber to challenge a section 215 order." Finally, Judge Pauley insists that Snowden's disclosures make no difference to his statutory interpretation: "To hold otherwise would spawn mischief: recipients of orders would be subject to section 215's secrecy protocol confining challenges to the FISC, while targets could sue in any federal district court." 3) Merits of the Statutory Claims Even if the statutory claims weren't barred, Judge Pauley writes, they would fail even if allowed to proceed. The ACLU had argued that the Stored Communications Act prohibits the collection of telephony metadata under Section 215. (It is relevant to Judge Pauley's considerations that these statutes were passed by Congress on the same day.) The Stored Communications Act prohibits communications providers from divulging subscriber information to the government unless the government obtains a warrant, an administrative subpoena, a grand jury or trial subpoena under the Act, or a national security letter (NSL) certified by the FBI Director or his designee. Section 215, however, allows the government to require production of "any tangible thing." Judge Pauley indicates that his attempt to read these statutes together must be "guided to a degree by common sense." As for what that means exactly: Pauley understands Section 215 orders as being "functionally equivalent to grand jury subpoenas;" it thus would be "absurd" for Congress to allow for compulsory production pursuant to NSLs but not pursuant to Section 215 orders. Both impose a "relevance" standard, after all; the only difference is that one emanates from the FBI and the other emanates from the FISC. Second, Judge Pauley "finds that Congress ratified section 215 as interpreted by the Executive Branch and the FISC, when it reauthorized FISA." The Executive Branch, per FISA, must provide semi-annual reports to the House and Senate Judiciary and Intelligence committees. These must include significant legal interpretations of Section 215 matters before the FISC and copies of all FISC orders and opinions that significantly interpret Section 215. In 2010, Congress reauthorized Section 215. In 2011, Senators Feinstein and Bond wrote a note to their colleagues that Section 215 required production of business orders "relating to substantially all of the telephone calls handled by the [telecommunications] companies, including both calls made between the United States and a foreign country and calls made entirely within the United States." Congress reauthorized Section 215 thereafter. In 2012, Senators were made aware of an updated, classified and 215-relevant document to review. Some Senators read it, some did not. Things were concededly a bit rockier in the other legislative chamber: it turns out that the House Intelligence Committee did not make the document available to members of the House. "While this is problematic," Judge Pauley writes, "the Executive Branch did what it was required to do under the statutory scheme that Congress put in place to keep Congress informed about foreign intelligence surveillance." He thus concludes that Congress, in reauthorizing FISA, signaled its continuing approval of the Executive's interpretation of Section 215---which in turn allowed for bulk metadata collection. Third, Judge Pauley holds that bulk telephony metadata collection is permitted by Section 215---that the materials sought in fact satisfy the "relevance" standard employed by the statute. Necessity figures into the court's analysis, it seems. "The ACLU argues that the category at issue---all telephony metadata---is too broad and contains too much irrelevant information. That argument has no traction here. Because without all the data points, the Government cannot be certain it has connected the pertinent ones." Relevance, Judge Pauley argues, is conceptually broad, and the government's burden in showing relevance is minimal. Because there is no way to know up front which metadata will lead to useful information, and because national security investigations are preventive rather than retrospective, Judge Pauley finds that Congress was "clearly aware of the need for breadth and provided the Government with the tools to interdict terrorist threats." Constitutional Claims But what of the plaintiffs' two constitutional arguments, under the Fourth and First Amendments? 1) Fourth Amendment The Supreme Court held in Smith that individuals have no "legitimate expectation of privacy" regarding the telephone numbers they dial. But the ACLU argues that analysis of bulk telephony metadata allows the creation of a rich mosaic: it can "reveal a person's religion, political associations, use of a telephone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes." Still, that is, as Judge Pauley explains, "at least three inflections from the Government's bulk telephony metadata collection." First, the NSA must have legal justification---subject to minimization procedures---to even query the database of collected metadata. Then, when it makes that query, it may only learn of the metadata within three "hops" of the "seed" number. Third, the Government does not know who any of the collected telephone numbers belong to. Finally, the Government "repudiates any notion that it conducts the type of data mining the ACLU warns about in its parade of horribles." Judge Pauley then rejects the ACLU's contention that other less-intrusive means could lead to the same information as irrelevant conjecture. Moreover, Judge Pauley writes, "[t]he ACLU's pleading reveals a fundamental misapprehension about ownership of telephony metadata." The ACLU's motion for preliminary injunction asks the government to refrain from collecting "Plaintiffs' call records," to quarantine "all of Plaintiffs' call records" already collected, and to prohibit the government from querying metadata using numbers associated with the Plaintiffs. But the business records created by Verizon are not Plaintiff's records---they are Verizon's. At the same time, the collection of "breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search." The ubiquity of cellphones lastly does not affect the analysis required by Smith. 2) First Amendment The ACLU argues that Section 215 collection will likely have "a chilling effect on people who would otherwise contact Plaintiffs." The Government responds that "surveillance consistent with Fourth Amendment protections . . . does not violate First Amendment rights, even though it may be directed at communicative or associative activities." Judge Pauley finds the government's argument to be convincing and well-supported by precedent. And "[a]ny alleged chilling effect," he writes, arises from a "speculative fear" resulting from a "'highly attenuated chain of possibilities.'" Remaining Considerations Judge Pauley finds that the ACLU has failed to state a claim and that the case must therefore be dismissed. That, of course, goes to the government's motion; the plaintiffs separately had sought injunctive relief. Regarding this, the court writes that even if the plaintiffs had been able to show a "likelihood of success on the merits," a preliminary injunction is too extreme a remedy to be awarded. Judge Pauley invokes Youngstown, writing that the President's power is at its zenith when acting pursuant to Congressional authorization to protect national security. And invoking Boumediene, he also warns that courts must pay proper deference to the Executive on national security issues. He then lists a series of examples where metadata collection resulted in the thwarting of potential terrorist attack. To be sure, the court does not dismiss the ACLUs concerns out of hand. Indeed, Judge Pauley evidently thinks some of them to be serious. He adds that simply because FISC judges have routinely found Section 215 collection to be lawful does not at all bind him---all the more so, considering that because the FISC's rulings were issued ex parte. Secret procedures may be necessary, in Judge Pauley's view, but they nevertheless are "not ideal for interpreting statutes." This riff seems to anticipate Pauley's conclusion, which seemingly favors statutory reform. "This case shows how FISC decisions may affect every American---and perhaps, their interests should have a voice in the FISC."
Lauren Bateman is a student at Harvard Law School, where she is an editor of the Harvard Law Review. She previously worked as a National Security Legislative Correspondent for Senate Majority Leader Harry Reid, and she takes a special interest in legislative procedure. She also interned for the United States Attorney's Office for the District of Nevada, and was a Research Fellow for the Project on National Security Reform. She graduated with a B.A., magna cum laude, in History and Government from The College of William & Mary in 2009.
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