Conor Friedersdorf / The Atlantic & Orin Kerr / The Washington Post – 2015-05-14 00:51:30

http://www.theatlantic.com/politics/archive/2015/05/the-vindication-of-edward-snowden/392741/

The Vindication of Edward Snowden
Conor Friedersdorf / The Atlantic

(May 11, 2015) — Edward Snowden’s most famous leak has just been vindicated. Since June 2013, when he revealed that the telephone calls of Americans are being logged en masse, his critics have charged that he took it upon himself to expose a lawful secret. They insisted that Congress authorized the phone dragnet when it passed the USA Patriot Act, citing Section 215, a part of the law that pertains to business records.

That claim was always suspect. The text of the law does not seem to authorize mass surveillance. A primary author and longtime champion of the law avows that Congress never intended to authorize the phone dragnet. And nothing like it was ever discussed during an extensive, controversy-filled debate about its provisions.

Now the wrongheadedness of the national-security state’s position has been confirmed.

A panel of judges on the Second Circuit Court of Appeals ruled last week that the program Snowden exposed was never legal. The Patriot Act does not authorize it, contrary to the claims of George W. Bush, Barack Obama, Michael Hayden, Keith Alexander, and James Clapper.

“Statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,” Judge Gerard E. Lynch declared. “The sheer volume of information sought is staggering.”

Other conclusions reached by the three-judge panel include the following:

“The interpretation that the government asks us to adopt defies any limiting principle.”

“We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.There is no evidence of such a debate . . . ”

“Congress cannot reasonably be said to have ratified a program of which many members of Congress — and all members of the public — were not aware … only a limited subset of members of Congress had a comprehensive understanding of the program. . . ”

“Finding the government’s interpretation of the statute to have been ‘legislatively ratified’ under these circumstances would ignore reality.”

Consider what this means.

Telling the public about the phone dragnet didn’t expose a legitimate state secret. It exposed a violation of the constitutional order. For many years, the executive branch carried out a hugely consequential policy change that the legislature never approved.

Tens of millions of innocent US citizens were thus subject to invasions of privacy that no law authorized. And the NSA’s unlawful behavior would’ve continued, unknown to the public and unreviewed by Article III courts, but for Snowden’s leak, which caused the ACLU to challenge the illegal NSA program.

Snowden undeniably violated his promise to keep the NSA’s secrets.

But doing so was the only way to fulfill his higher obligation to protect and defend the Constitution, which was being violated by an executive branch exceeding its rightful authority and usurping the lawmaking function that belongs to the legislature.

This analysis pertains only to the leaked documents that exposed the phone dragnet, not the whole trove of Snowden leaks, but with respect to that one set of documents there ought to be unanimous support for pardoning his disclosure.

Any punishment for revealing the phone dragnet would be unjust.

Now that a federal appeals court has found that Section 215 of the Patriot Act did not in fact authorize the policy, punishing a man for exposing the program would set this precedent: Whistleblowers will be punished for revealing illegal surveillance. That’s the position anyone who still wants Snowden prosecuted for that leak must take, if the ruling stands. (Other federal courts have issued rulings pointing in contrary directions, and this latest ruling will likely be appealed.)

Consider how this federal court ruling informs the debate over state secrets generally. Civil libertarians have long warned that secret national-security policies undermine both representative democracy and our system of checks and balances.

And that is exactly what happened with respect to the phone dragnet!

Officials classified the program as a state secret, keeping it out of Article III courts. By doing so, they prevented the judiciary from reviewing the statutory legitimacy of NSA surveillance, subverting a core check in our system of government.

Its secret status stymied congressional debate, too.

And it undermined self-government, forcing Americans to judge their elected representatives in a state of ignorance about hugely consequential actions they’d taken.

The consequence: An illegal program persisted for years. This is a perfect illustration of why secret government programs are an abomination in our democracy.

(For more detailed legal analysis of the appeals court decision see Orin Kerr’s article below.)

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Second Circuit Rules, Mostly Symbolically,
That Current Text of Section 215 Doesn’t Authorize Bulk Surveillance
Orin Kerr / The Washington Post

(May 7, 2015) — Edward Snowden’s biggest leak was that the Foreign Intelligence Surveillance Court had interpreted Section 215 of the Patriot Act to authorize bulk collection of everyone’s phone records. This was astonishing news, as nothing on the face of the face of the statute suggested it had that anything like that broad a reach. Legal challenges followed, on both statutory and constitutional grounds.

This morning, the Second Circuit finally handed down its opinion on one of the pending legal challenges. It’s the first appellate court ruling on the issue. Today’s decision rules that the text of Section 215 does not authorize the program as a matter of statutory law. The Second Circuit does not reach whether the NSA program violates the Fourth Amendment.

My initial reaction, on a first read, is that the Second Circuit’s decision is mostly symbolic. As regular readers know, I agree with the court’s bottom line statutory analysis that Section 215 doesn’t authorize the NSA program. But while you would normally think that a ruling on such an important question by a court as important as the Second Circuit would be a big deal, I’m not sure the Second Circuit’s opinion actually matters very much.

The main reason is that Section 215 sunsets in three weeks. The Second Circuit ruling does not enjoin the NSA program. It does not rule on the Fourth Amendment question. It mostly interprets statutory language that goes off the books in a few weeks, with the understanding that the court’s ruling won’t be implemented by the district court in that time window.

So from a practical perspective, it’s mostly symbolic. With that said, the decision is a rebuke to the Foreign Intelligence Surveillance Court for the FISC’s statutory analysis that approved the bulk telephone metadata program.

Here’s a rundown of the majority opinion, with some additional thoughts of mine at the end.

1. Standing
The opinion begins by concluding that any person whose data is collected as part of the program has Article III standing to challenge the program. Article III standing to challenge the program is not limited to those whose data was queried, but rather to anyone whose data was collected.

This is perhaps the most confusing part of the opinion, because the Court somewhat oddly blends together Article III and Fourth Amendment principles to create a sort of Article III standing doctrine for challenges that include Fourth Amendment claims — even though the court then doesn’t rule on the Fourth Amendment claims. Here’s what the court says:

Appellants challenge the telephone metadata program as a whole, alleging injury from the very collection of their telephone metadata. And, as the district court observed, it is not disputed that the government collected telephone metadata associated with the appellants’ telephone calls. The Fourth Amendment protects against unreasonable searches and seizures.

Appellants contend that the collection of their metadata exceeds the scope of what is authorized by § 215 and constitutes a Fourth Amendment search. We think such collection is more appropriately challenged, at least from a standing perspective, as a seizure rather than as a search.

Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them.

“[A] violation of the [Fourth] Amendment is fully accomplished at the time of an unreasonable governmental intrusion.” United States v. Verdugo‐Urquidez, 494 U.S. 259, 264 (1990) (internal quotation marks omitted). If the telephone metadata program is unlawful, appellants have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by a favorable ruling.

Further, there’s Article III standing because there’s a kind of search at issue here, whether or not it is a “search” in the technical Fourth Amendment sense:

Finally, the government admits that, when it queries its database, its computers search all of the material stored in the database in order to identify records that match the search term. In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent.

There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.

2. Preclusion
The court next rules that nothing in the text of Section 215 or FISA more generally precludes the usual rule that executive action can be challenged in court under the Administrative Procedure Act:

The government has pointed to no affirmative evidence, whether “clear and convincing” or “fairly discernible,” that suggests that Congress intended to preclude judicial review. Indeed, the government’s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have.

That revelation, of course, came to pass only because of an unprecedented leak of classified information. That Congress may not have anticipated that individuals like appellants, whose communications were targeted by § 215 orders, would become aware of the orders, and thus be in a position to seek judicial review, is not evidence that Congress affirmatively decided to revoke the right to judicial review otherwise provided by the APA in the event the orders were publicly revealed.

. . . [T]he government relies on bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence in an effort to find an implied revocation of the APA’s authorization of challenges to government actions. That is not enough to overcome the strong presumption of the general command of the APA against such implied preclusion.

Congress, of course, has the ability to limit the remedies available under the APA; it has only to say so. But it has said no such thing here. We should be cautious in inferring legislative action from legislative inaction, or inferring a Congressional command from Congressional silence.

At most, the evidence cited by the government suggests that Congress assumed, in light of the expectation of secrecy, that persons whose information was targeted by a § 215 order would rarely even know of such orders, and therefore that judicial review at the behest of such persons was a non-issue. But such an assumption is a far cry from an unexpressed intention to withdraw rights granted in a generally applicable, explicit statute such as the APA.

3. The Statutory Merits
On the statutory merits, the court concludes that Section 215 doesn’t support the program. As drafted and passed by Congress, Section 215 is just a grand jury subpoena authority:

In adopting § 215, Congress intended to give the government, on the approval of the FISC, broad‐ ranging investigative powers analogous to those traditionally used in connection with grand jury investigations into possible criminal behavior.

Bulk metadata collection just doesn’t fit in the traditional powers of a grand jury subpoena authority:

The records demanded are all‐encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry. Rather, the parties ask the Court to decide whether § 215 authorizes the “creation of a historical repository of information that bulk aggregation of the metadata allows,” Appellees’ Br. 32, because bulk collection to create such a repository is “necessary to the application of certain analytic techniques,” Appellants’ Br. 23. That is not the language in which grand jury subpoenas are traditionally discussed.

Thus, the government takes the position that the metadata collected – a vast amount of which does not contain directly “relevant” information, as the government concedes — 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. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted.

The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here.

. . . .The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future.

The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects — they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program.

As I put the same point in my recent article, for the text of Section 215 to authorize bulk collection, “any federal prosecutor anywhere in the country could have compelled every phone company to hand over all of its telephony metadata on an ongoing basis so long as the prosecutor claimed that it was necessary to help solve a case. It is hard to imagine a federal judge allowing such a subpoena in a criminal case[.]”

Also, the Second Circuit rejects the argument that Congress knew about the program and impliedly approved it: The program wasn’t widely known in Congress and the public wasn’t aware of it.

And that brings us to the Second Circuit’s bottom line:

We conclude that to allow the government to collect phone records only because they may become relevant to a possible authorized investigation in the future fails even the permissive “relevance” test. Just as “the grand jury’s subpoena power is not unlimited,” United States v. Calandra, 414 U.S. 338, 346 (1974), § 215’s power cannot be interpreted in a way that defies any meaningful limit.

Put another way, we agree with appellants that the government’s argument is “irreconcilable with the statute’s plain text.” Appellants’ Br. 26. Such a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft‐used language long held in similar contexts to mean something far narrower.

“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not . . . hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns., 531 U.S. 457, 468 (2001). The language of § 215 is decidedly too ordinary for what the government would have us believe is such an extraordinary departure from any accepted understanding of the term “relevant to an authorized investigation.”

That’s correct, I think.

4. The Fourth Amendment
Having ruled for the challengers on the statutory claim, the court does not rule on the Fourth Amendment challenge. However, the court decides to “discuss” the Fourth Amendment issue anyway because the finds the issue “potentially vexing.”

The court’s discussion is mostly about the role of Congress. Congress should take “the primary role . . . in deciding, explicitly and after full debate, whether such programs are appropriate and necessary.” Further, the court would see express statutory authorization as relevant to constitutionality:

[W]hether Congress has considered and authorized a program such as this one is not irrelevant to its constitutionality. The endorsement of the Legislative Branch of government provides some degree of comfort in the face of concerns about the reasonableness of the government’s assertions of the necessity of the data collection.

Congress is better positioned than the courts to understand and balance the intricacies and competing concerns involved in protecting our national security, and to pass judgment on the value of the telephone metadata program as a counterterrorism tool.

Moreover, the legislative process has considerable advantages in developing knowledge about the far‐reaching technological advances that render today’s surveillance methods drastically different from what has existed in the past, and in understanding the consequences of a world in which individuals can barely function without involuntarily creating metadata that can reveal a great deal of information about them.

A congressional judgment as to what is “reasonable” under current circumstances would carry weight — at least with us, and, we assume, with the Supreme Court as well — in assessing whether the availability of information to telephone companies, banks, internet service providers, and the like, and the ability of the government to collect and process volumes of such data that would previously have overwhelmed its capacity to make use of the information, render obsolete the third‐party records doctrine or, conversely, reduce our expectations of privacy and make more intrusive techniques both expected and necessary to deal with new kinds of threats.

5. Back to the District Court
The Second Circuit then declines to enjoin the program, instead kicking the case back to the district court.

[W]e decline to conclude that a preliminary injunction is required, and leave it to the district court to reconsider, in the first instance, the propriety of preliminary relief in light of a correct understanding of the governing law.

We note that at the present time, § 215 is scheduled to expire in just several weeks. The government vigorously contends that the program is necessary for maintaining national security, which of course is a public interest of the highest order.

Allowing the program to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on appellants’ privacy than they faced at the time this litigation began.

In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.

Moreover, given the necessity of congressional action, the statutory issues on which we rest our decision could become moot (at least as far as the future of the telephone metadata program is concerned), and the constitutional issues appellants continue to press radically altered, by events that will occur in a short time frame.

6. A Few Thoughts of My Own
Here are a few additional thoughts of my own based on my initial read of the opinion:

a) They took all that time for this? I mean, the Second Circuit held argument on September 2nd, and I concluded from the argument that this is probably where they were heading. It’s odd that the court took eight months to hand down a mostly-symbolic opinion interpreting a program set to expire in three weeks.

b) There’s a lot in the opinion that you might call legislative reinforcement: Pushing the law into Congress’s hands. This is your job, the Second Circuit is saying, more than ours. But note that the Second Circuit is also saying that the courts have wide powers to review surveillance programs for compliance with statutory authority unless Congress has stated clearly otherwise. So the lesson is, “This is your job, Congress, and we’re going to be watching you closely unless you get your act together and tell us clearly that we should butt out.”

c) I was least persuaded by the Second Circuit’s view that the Administrative Procedure Act authorizes judicial review here. But there’s also an easy way for Congress to deal with that holding. It just needs to be clearer, going forward, about whether it is allowing judicial review.

d) I was persuaded by the bottom line statutory analysis. But then that’s not surprising, as it closely matches what I (and others) have said.

e) One of the major audiences for this opinion is the Foreign Intelligence Surveillance Court. If you’re on the FISC, and you voted to approve the bulk telephony program under Section 215, the Second Circuit is talking to you. Second Circuit rulings aren’t precedential for the FISC, so it’s not certain how much the FISC judges will be influenced by this pushback from the Second Circuit. But this is partly directed to them.

f) The court’s rumination about the Fourth Amendment issue is a little odd because it’s about a constitutional question that isn’t the focus of the NSA challenges. The idea that Congress’s approval of a program is relevant to its constitutional reasonableness is an interesting concept. But the real Fourth Amendment debate over the program has been what is a Fourth Amendment search in the first place, not when searches are constitutionally reasonable.

But it’s not clear that the Second Circuit’s rumination about Congressional approval has any relevance to what is a search. When conduct isn’t a search, Congress doesn’t have to “approve” it first: If Congress wants to allow it freely, it can do (and usually does) nothing. So the court’s idea seems mostly or entirely to be about reasonableness after a search has been identified, which was at issue in the Section 215 challenges but has not been the focus.

g) Relatedly, I’m skeptical about the idea that Congressional approval is relevant to the reasonableness of a Fourth Amendment program. That would mean that you could have a program that violates the Fourth Amendment at first, but that the legislature could approve and thus render the program constitutional.

It’s not clear to me why that would be the case. It would seem to just invite legislatures to enact laws approving all sorts of sketchy practices, on the hope that this would be seen as legislative approval that makes the program less sketchy.

And what if the program expires, as Section 215 is set to expire in a few weeks: Does the sunset make the program unconstitutional again? And for purposes of a civil suit, do you measure the constitutionality of the program based on the time-window when it was statutorily approved or afterwards?

It seems like a somewhat puzzling concept to me. And I note that the Second Circuit cites no caselaw at all in this section, so it’s not clear thy knew why it should be the case, either.

UPDATE: A few commenters, here and on Twitter, respond that the ruling is a big deal because will impact the legislative debate, currently ongoing, over what to do with Section 215. That’s correct, so let me say a bit more about the senses in which the Second Circuit’s decision is “mostly symbolic” versus a “big deal.” As I wrote last month, the Second Circuit’s opinion may have a big impact on the legislative debate:

The Second Circuit would presumably stay any ruling pending appeal, and given the timing, we would hit June 1 before the stay ran out. So the ruling wouldn’t directly stop anything. But it could give Section 215 opponents in Congress significant ammunition to oppose renewal.

And as a practical matter, Congress would probably have to assume the correctness of the Second Circuit’s statutory interpretation if the votes are there for some kind of compromise legislation that retains some aspects of the program.

The reason I call today’s opinion “mostly symbolic” is that I suspect this impact on the legislative debate is probably a bit in the weeds for most readers. Whether a ruling is a “big deal” or not depends on your standard for a “big deal.”

If you are focused closely on the legislative debate, the Second Circuit’s ruling is a big deal indeed. On the other hand, if you are interested in the bigger question of whether the challenge to the program will stop the program, the ruling is mostly symbolic. Hope that makes sense.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.

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