C-SPAN videotaped Tuesday’s oral argument in the U.S. Court of Appeals for the Second Circuit in ACLU v. Clapper, one of the primary challenges to the Section 215 telephony metadata collection program.   It was an excellent argument all around, from the stellar advocacy of Alex Abdo and Stuart Delery to the engaged and thoughtful questions from all three judges.  The judges were genuinely interested in what the advocates had to say on the difficult questions that were puzzling them, and the advocates’ responses were direct and informative, even as they continued to zealously press their arguments.  And all parties were extremely well-prepared.  Fancy that—a genuinely productive dialogue between bench and bar!  Truly, a model of what an oral argument ought to be—a terrific teaching tool, for students and appellate attorneys (and even judges) alike.

As Orin Kerr notes, the judges appeared to be more interested in the statutory arguments—i.e., in whether Congress has either prohibited or authorized the 215 telephony metadata program–than in the question of whether the program satisfies the Fourth Amendment.  I have already blogged my significant doubts about the statutory grounding of the program.  The judges on Tuesday appeared to share at least one of those doubts:  the dialogue between Judge Lynch and Alex Abdo made clear that if the government’s reading of the “relevance” requirement in 215 were correct, not only would it mean that the government could obtain all manner of bulk records under 215, not limited to telephony metadata, that might make data-mining for intelligence information more effective (e.g., email records, bank records, telephony and email content), but also that the government could obtain many forms of such bulk records (including telephony metadata) without using Section 215 or going through the FISA court at all, and without the substantial limitations and conditions that court has imposed, simply by issuing “national security letters” to the FBI, a fairly implausible understanding of Congress’s design.  As I wrote back in October:

If the FISC were correct that a bulk metadata collection held by NSA is, in its entirety, “relevant” to FBI terrorism investigations because having such a database is “necessary” to permit NSA to be more effective in identifying terrorist connections, then presumably the same would be true under the 2709 relevance standard [for NSLs], which would mean that the FBI could obtain all telephony phone records of everyone in the nation simply by issuing a handful of NSLs, without any FISC involvement at all, and without the minimization requirements of Section 215.

It is hard to imagine that is correct.  If the FBI tried to use the reasoning of the FISC in order to request the records of all of a provider’s customers, and to do so on a perpetual, prospective basis, pursuant to NSLs and without an order from the FISC, it’s fair to assume that at least some service providers would balk–they would be deeply concerned about relying on the government’s very aggressive, and unexpected, reading of the “relevance” standard.  After all, the common understanding of 2709 NSLs was and is that they are to be used to obtain the discrete records of particular targets, on an individualized (and time-specific) basis, not the sort of undifferentiated, bulk transfers of all customers’ records at issue here.  Therefore a reasonable provider would understandably be loath to rely upon the say-so of the FBI Director that 2709 allows NSLs of such a breathtaking scope, especially since that would have been a significant deviation from established NSL practice.  (Recall that those same service providers had just experienced the intense controversy of participating in the “Terrorist Surveillance Program,” in which they had relied upon certifications of legality by the Attorney General that turned out to be invalid.)

And indeed, that appears to be exactly what happened:  A former FISA judge recently recounted that he would sometimes ask government attorneys why they were using the surveillance court to issue Section 215 orders, rather than simply demanding the metadata from providers by way of NSLs.  The DOJ lawyers reportedly told the judge:  “Well these companies aren’t very comfortable giving us this without a court order.”  That’s hardly surprising.  Indeed, [FISA court judge] Walton . . . appears to have acknowledged that the databases at issue under the Section 215 orders could not be obtained via NSLs.  Less than three months after he turned aside any concerns about ECPA, he opined that “nearly all of the call detail records collected . . . are data that otherwise could not be legally captured in bulk by the government.”  If that statement is accurate–if all these metadata could not have been collected by way of NSLs–it’s hard to see why such bulk call records can be “legally captured” pursuant to Section 215, either.

The more important aspect of Tuesday’s argument, however, is that, whatever one’s views might be on the best reading of the statute, Judge Lynch was surely onto something important when he suggested that perhaps the wisest course would be for the court to construe the statute in order to avoid the need to reach the constitutional question.

There is, of course, a significant, ongoing debate about whether the Section 215 telephony metadata program violates the Fourth Amendment.  Whatever the Supreme Court’s ultimate answer to that debate would be, however, there’s little doubt that, at a minimum, the program raises serious constitutional questions, just as did the GPS and cell-phone search practices in the recent Jones and Riley cases.  Accordingly, the courts reviewing the program (both this Second Circuit panel and the panel of the U.S. Court of Appeals for the D.C. Circuit in the Klayman case, which will be argued on November 4) are obliged to construe genuine ambiguities in the statute to avoid those serious constitutional questions.  And, whatever else may be said for it, surely the government’s statutory reading of Section 215 (and of its relationship to ECPA) is not unambiguously what Congress intended.

The district court judge concluded, however–and the government argues–that this “avoidance construction” option is not available to the courts, because Congress has implicitly precluded judicial review of any statutory challenge under the Administrative Procedure Act brought by a customer whose records have been collected.

I tend to think that the ACLU has the better of the argument on that score (see pp. 31-38 of its brief; see also Steve’s post here)–i.e., that there is no “clear and convincing evidence of a . . . legislative intent [to] restrict access to judicial review,” which is what the APA requires in order to overcome the presumption in favor of such review.

But Tuesday’s oral argument teased out another important point, too:  The government concedes that Congress did not preclude judicial review of a customer’s constitutional challenge to Section 215 collection, such as the Fourth Amendment challenge the ACLU has brought in this case.  This concession tends to undermine the particular arguments the government offers for why statutory claims under the APA are precluded:  For example, if, as the government argues, the preclusion of an APA claim is demonstrated by Congress’s assumption that FISC orders would remain unknown to customers, or by the fact that Congress expressly provided a right of judicial review to the recipients of Section 215 orders, then it would appear to follow as a matter of logic that such preclusion would extend to constitutional challenges, as well.  (If customers would not know about 215 orders, for instance, how could they bring constitutional challenges?)  If, however, such constitutional claims are not precluded, as the government acknowledges they are not, then it is difficult to see why an APA claim would be.

More to the point, the upshot of the government’s argument is that Congress intended to preserve customers’ rights to bring constitutional challenges to a Section 215 collection, but not to offer courts a limiting statutory construction in order to avoid serious constitutional questions.  Really?  Can it truly be the case that Congress would have wanted courts to ignore possible statutory constructions that would preclude the need to resolve momentous Fourth Amendment questions–but would have invited the courts to reach the merits of the constitutional questions themselves, without regard to whether the executive and the FISA court’s construction of the statute was unambiguous, or even plausible?  That result would certainly be counterintuitive, to say the least; and I am not aware of any cases in which courts have held that constitutional avoidance claims are precluded where constitutional claims themselves are justiciable.

Therefore, if my reading of the judges’ questions is any indication of where they’re leaning (and of course it might not be), there’s a good chance they would rule for the ACLU on statutory grounds and not reach the Fourth Amendment question.  This would be an especially apt resolution of the appeal in light of the fact that Congress is currently debating how to amend Section 215 to preserve some form of bulk collection of telephony metadata, albeit under a regime quite different from the current FISC-sanction program.  (As Steve noted yesterday, the Administration has expressed its support for the “Leahy” bill, the Senate version of the USA Freedom Act.)  This is the first opportunity Congress has had to consider the questions fully, and to debate how such a collection program should ideally be constructed.  Any court would understandably be wary of issuing a major constitutional ruling on the scope of Congress’s power before the legislature has even had a chance to weigh in with its own view of what is appropriate and “reasonable” for purposes of the Fourth Amendment.

But that only raises another question the judges pondered on Tuesday–namely, why bother ruling at all?  If the court does conclude that the program is prohibited or not authorized by current statutes, presumably that ruling would be stayed pending Congress’s resolution of the question, which would be next summer at the latest (when Section 215 sunsets).  (In the unlikely event neither the court of appeals nor the Supreme Court issued such a stay, there’s a good chance Congress would pass interim legislation to authorize the program during its reconsideration.)  So would such a ruling accomplish anything, as a practical matter? I think it could.  For one thing, such a ruling would potentially limit the way in which the government can construe “relevance” and related requirements under statutory provisions analogous to Section 215, such as the pen trap and NSL statutes.  A statutory ruling might also offer Congress itself guidance on what it would need to do in order to amend the current corpus of laws–including, for example, on the interrelationship of Section 215 and ECPA–to accomplish its objectives.

Moreover, a stay of such a ruling might be crafted in a way that offers the ACLU some meaningful interim relief, assuming the court has found that the program causes the organization to suffer continuing harm.  The case comes to the court of appeals not on the merits, but on an ACLU motion for a preliminary injunction.  The ACLU is seeking three forms of preliminary relief:  (i) a prohibition on the Defendants’ “collecting Plaintiffs’ call records under the mass call-tracking program” during the pendency of the suit; (ii) a requirement that the Defendants “quarantine all of Plaintiffs’ call records already collected under the program” during the suit; and (iii) an injunction on the Defendants “querying metadata obtained through the program using any phone number or other identifier associated with Plaintiffs.”  Even if the court were to stay an order proscribing collection, and even if a “quarantine” of plaintiffs’ records would is not technologically manageable in the short term (I have no idea whether it is or not; see paragraphs 14-16 of this declaration in the case), perhaps the court could nevertheless impose an injunction, without a stay, of any queries of metadata “using any phone number or other identifier associated with Plaintiffs [the ACLU and NYCLU].”  I assume that such a plaintiff-tailored injunction on querying would not significantly affect the overall utility to the NSA of the Section 215 program, and that therefore there’d be no imperative to stay such an order until Congress amends the statute.  Of course, such an order might present complications that aren’t apparent to me just now.  As far as I know the parties have not yet briefed that particular question; but I can imagine the court of appeals might be interested in hearing more about it if and when the court concludes that the telephony metadata collection program is invalid on statutory grounds.