Commentary

The (Telephony) Matrix Reloaded

The Obama administration has sought to temporarily relaunch the NSA’s bulk telephone records collection program, which was wound down over recent weeks as its legal foundation, §215 of the Patriot Act, briefly lapsed during the debate over the USA Freedom Act. But may it legally do so? Former Virginia Attorney General (and perennial conservative gadfly) Ken Cuccinelli is teaming with the advocacy group FreedomWorks to challenge the rebooted telephony dragnet.

The Fourth Amendment arguments against the program remain largely unchanged, and so whatever you thought about the constitutionality of indiscriminate collection of domestic telephone records before the passage of the USA Freedom Act, you can probably hang on to your opinion. The statutory argument, however, is rather more complicated. The Second Circuit held prior to the passage of the Freedom Act that in fact the NSA program was never properly authorized by §215. While the Second Circuit’s holdings don’t bind the Foreign Intelligence Surveillance Court, one would at the least expect the FISC to be somewhat circumspect about brushing aside a federal appeals court ruling, and the plaintiffs in that case might well be expected to seek an injunction from the Second Circuit if the FISC should issue another bulk §215 order.

On the assumption that the pre-sunset version of the §215 authority has now been restored (which is fairly clearly what Congress intended, though there is some technical dispute as to whether it successfully did so) without further alteration for the next six months, the Second Circuit ruling would at first blush still seem to apply. Congress did not, after all, modify the “relevance” standard that the court found could not fairly be construed to authorize indiscriminate collection. So there’s a pretty straightforward textual argument that if the telephone records of all Americans could not reasonably be deemed “relevant to an authorized investigation” in May, we should not suppose that they have become relevant to an authorized investigation in June.  Moreover, the House Judiciary report on the bill explicitly disavows any intent to “ratify” the FISC interpretation of “relevance,” and approvingly cites the Second Circuit ruling, which taken in isolation might seem like a pretty clear indication that the authority cannot be used to resume bulk collection under that same language.

The Obama administration has sought to temporarily relaunch the NSA’s bulk telephone records collection program.

What complicates matters is that the Second Circuit devoted significant space to the question of “ratification”—of whether Congress had, in previously reauthorizing §215, given its blessing to the FISC’s construal of “relevance,” and therefore to the bulk telephony program. Given the secrecy surrounding the program, the court held that Congress had not done so—but also that it could do so. by appropriate legislative action. And despite the disavowal noted above,  the limited public discussion of the “transition period” built into the USA Freedom Act—the six month period before most of the new law’s reforms kick in— does indeed seem to take for granted that the bulk telephony program would continue in the interim. Freedom Act co-sponsor Mike Lee, for example, referred in a May 29 op-ed to the “the six-month transition period between the current program and the program outlined by the USA Freedom Act.” An exchange between NSA Director Mike Rogers and Senate leadership also seems to take for granted that the delayed effective date for reforms is meant to permit the continuation of bulk collection in the interim. Perhaps most significantly, leaders in the House—which passed USA Freedom by a wide margin—objected to Mitch McConnell’s amendment proposing to push back the effective date by another six months on the grounds that it would “unnecessarily extend the current bulk collection program for a year,” in a statement released after the §215 sunset had already kicked in.

In short, we can find abundant evidence that many members of Congress—including the chief supporters of USA Freedom—took for granted that bulk collection of telephone records would continue during a six-month transition phase, that the intent of Congress in delaying the effective date of key reforms was to permit this, and that at least some legislators voted for the law on the basis of assurances that such a transition phase would avoid any operational disruption. Yet there’s nothing explicit in the text of the bill to permit this, and as the Second Circuit noted, the Supreme Court has held that “where the law is plain, subsequent reenactment does not constitute an adoption of a previous administrative construction.” The Second Circuit argued fairly convincingly that it is plain that the relevance standard adopted from the grand jury context does not authorize collection on this scale, divorced from any particular national security investigation. Moreover, that court presumed that if Congress reenacted §215 “without expanding it to authorize the telephone metadata program”—which it certainly has not explicitly done—then the program would perforce end.

If history is any guide, the FISC will almost certainly resolve this tension in favor of embracing its own previous holdings and authorizing another bulk §215 order. The question then becomes whether the Second Circuit chooses to involve itself further—having declined to issue an injunction in May on the grounds that it was appropriate to “pause” while Congress acted. If it does, the stakes may be heightened significantly, for even if the court reads the delayed effective date as a sufficiently unambiguous signal of legislative intent to temporarily authorize bulk collection, the Fourth Amendment arguments the court deferred in its May ruling remain. While the court did signal that a congressional judgment that continued bulk collection was “reasonable” would weigh in its Fourth Amendment analysis, it also signaled skepticism of the government’s “multiplication by zero” argument—the theory that if (per Smith v. Maryland) no privacy interest is invaded by government acquisition of a relatively modest number of one individual’s “third party” records, the same holds for the continuous collection of hundreds of millions of people’s records over a span of months or years.

While it’s unclear whether that question could reach the Supreme Court in a timely fashion, a decision on Fourth Amendment grounds would set up a potential reconsideration, long sought by privacy advocates, of the Third Party Doctrine itself—and indeed, of that doctrine taken to its logical extreme. Given how deeply entrenched that doctrine now is in law enforcement practices, one might expect the government to be hesitant to invite a ruling that could upset the apple cart, especially in light of the reasoning endorsed by the five-justice “shadow majority” in U.S. v. Jones that—simply put—size matters, and monitoring that has not traditionally been considered a Fourth Amendment search may rise to that level if sufficiently intensive or protracted.

The simplest solution, at this point, would be for the government simply to back off. The NSA is already obtaining specific judicial approval for queries of the existing bulk telephony database—whose demonstrable intelligence value is, in any event, marginal at best. The administration could simply choose to leave the bulk telephony program inactive and obtain §214 pen register orders for the specific suspect numbers it is now seeking FISC permission to query, perhaps using National Security Letters to fill in any retrospective gaps. Since the transition period is a mere six months, the historical perspective touted (dubiously) as a prime advantage of bulk collection should not be a factor, since carriers all retain call records for at least that long. Privacy advocates might welcome an opportunity to have the courts revisit the Third Party Doctrine, but since the best case scenario for the government of any such reevaluation would be preservation of the status quo, it’s not at all clear why the Justice Department would invite such a result. For the moment, however, they appear to be in a gambling mood.

Julian Sanchez is a senior fellow at the Cato Institute and contributing editor for Reason magazine.