Sen. Dianne Feinstein, D-Calif., left, chair of the Senate Intelligence Committee, walks with National Intelligence Director James Clapper on Capitol Hill following a closed-door briefing, in Washington, Sept. 9, 2014

Sen. Dianne Feinstein, D-Calif., left, chair of the Senate Intelligence Committee, walks with National Intelligence Director James Clapper on Capitol Hill following a closed-door briefing, in Washington, Sept. 9, 2014 J. Scott Applewhite/AP

While Ruling NSA Program Illegal, Appeals Court Suggests Path Forward

A recent federal appeals court ruling on the NSA's domestic surveillance program seems to be sending the political branches constitutional messages about how to proceed next.

Last week, a federal appeals court ruled that Section 215 of the PATRIOT Act does not authorize the NSA’s telephone metadata surveillance program. Since Edward Snowden disclosed it in June 2013, the program has been so controversial that its fate has taken on historic significance. The decision in American Civil Liberties Union v. Clapper arrived as Congress must decide whether to reform the program, continue it by re-authorizing Section 215, or let Section 215 expire on its June 1 sunset date. The judgment provided the program’s defenders and critics with ammunition in this debate. Moreover, the court, through its decision, seems to be sending the political branches explicit constitutional messages about what should happen next.

Troubling Aspects of the Decision

This case began in August 2013 when the ACLU filed suit in response to the program’s disclosure. In December 2013, a federal district court denied the ACLU’s request for a preliminary injunction, reasoning that federal law precluded judicial review of Section 215 and the program did not violate the Fourth Amendment.

The appeals court over-ruled the district court. It decided Congress did not preclude judicial review of Section 215, and it held Section 215 did not authorize bulk collection of telephone metadata because this activity was not, and could not reasonably be interpreted as being, relevant to authorized counter-terrorism investigations. The court did not issue a Fourth Amendment ruling. Nor did it grant the preliminary injunction the ACLU sought.

Commentary of the appeals court’s decision has mostly focused on whether the court was legally correct or persuasive and what impact the decision might have on Capitol Hill. However, the decision has troubling features that have received less attention but deserve examination. To begin, the court compared the firestorm over the program to scandals in the 1970s concerning surveillance within the United States. Like federal courts did in the 1970s, it held that the phone metadata surveillance program was illegal. Yet, in not issuing an injunction, the court allowed the program to continue because of the “national security interests at stake.”

Under constitutional law, surveillance should have a legal basis. After the court’s interpretation of Section 215, that basis could only be the president’s constitutional national security powers. But, federal courts in the 1970s rejected claims that these powers justified the domestic surveillance at issue. The Bush administration turned to Section 215 to avoid continuing to rely on presidential powers to justify the metadata program legally. So, with presidential authority suspect, what is the legal basis for the program as it continues to collect phone metadata on Americans?

Concerns multiply when we consider the privacy implications of government collection of metadata in the age of ubiquitous digital technologies. The court acknowledged dependence on these technologies raises difficult questions about the “third-party doctrine,” where data is not protected under the Fourth Amendment if it is shared with a third party, such as a phone company. Given this acknowledgment, is the court allowing a surveillance program to continue that not only lacks a legal basis but also might violate the Fourth Amendment?

Making Sense of the Decision

In its decision, the court is sending two strong messages to the legislative and executive branches about their responsibilities to protect national security and safeguard individual rights. First, the court believes the best outcome over the the Section 215 program is agreement between the political branches. Issuing a preliminary injunction because the metadata program had no legal basis or making a Fourth Amendment ruling because of the impact of digital technologies would take federal courts deeper into volatile national security, privacy, constitutional, and political controversies. The court asserts that legislation provides the most effective way to design metadata surveillance programs for counter-terrorism and to signal what the political branches deem is permissible under the Fourth Amendment. In short, the political branches can directly authorize metadata surveillance to protect national security (avoiding the surreal interpretive brawl Section 215 became) tailored to reflect privacy concerns about government collection and analysis of metadata in the digital age (avoiding potentially divisive judicial decisions on the Fourth Amendment).

Second, the court’s reasoning contains warnings to the political branches as they consider their next steps. Its interpretation of “relevance” in Section 215 sends the message that invoking national security should not contort laws in ways that defy their language and intent. The court also rejects the argument that Congress ratified the executive branch’s expansive definition of relevance when it reauthorized Section 215 in 2011. In doing so, the court communicated that secret legislative review of secret interpretations of public laws is not legitimate. Finally, the court signaled its view that changes in communication technologies raise serious constitutional concerns with the third-party doctrine, suggesting that it might have held the metadata program in breach of the Fourth Amendment had it reached this question.

In sending these messages, the court recognized the constitutional prerogatives of the political branches in national security but provided rule-of-law guidance to Congress and the president in crafting new legislation the United States so badly needs. Whether the political branches live up to these responsibilities in the coming days will signal to the world if the United States understands how to protect the security and rights of a free people.

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