How the Second Circuit’s Decision in Clapper Informs the Section 215 Discussion

This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

A lot of (mostly virtual) ink has already been spilled analyzing the Second Circuit’s decision in ACLU v. Clapper. As a matter of statutory construction, the three-judge panel’s unanimous conclusion that Section 215 of the Patriot Act doesn’t authorize the National Security Agency’s collection of Americans’ phone records, has garnered broad support (for example here and here). Of course, the decision plays into the current congressional debate about how to address the upcoming sunset of Section 215 (see Steve’s post here and Liza Goitein over at Lawfare), likely strengthening the hand of reformers. Beyond these immediate questions, three aspects of the court’s decision strike me as particularly interesting.

First, the court’s opinion begins by drawing a parallel between the spying scandals of the early 1970s and today. Some find this framing irksome, arguing that this time round, it’s evident that the NSA played by the rules. I think this rather misses the point: Are the rules in place sufficiently robust to address the type of surveillance that technology has enabled?

While the turmoil over surveillance in the 1970s was triggered by press revelations, the full extent of executive branch shenanigans — and the deficiencies in legal safeguards — came to light only after an intensive, two-year long investigation by the Church Committee. We have yet to have a full accounting of the NSA’s current crop of programs. The intelligence community has resisted a broader examination — for example, of the impact on Americans of NSA programs under Section 702 of the FISA Amendments Act, or Executive Order 12,333 — that would lead to a full understanding of the scope of its activities and the applicable legal framework. Indeed, a cynic might say that the NSA and the White House have supported reforms to Section 215 in the hope that they can be done with the issue of surveillance altogether. More fundamentally, public unease with modern surveillance capabilities is not necessarily linked to evidence of abuse. People understand, if only dimly, that the NSA’s “collect it all” approach combined with the vast troves of information vacuumed up by the likes of Google and Facebook poses a threat to democratic values.

Second, as Jennifer Daskal explained last Friday, “collection matters.” The Second Circuit rejected the government’s contention that there was no cognizable injury until plaintiffs’ phone records were actually analyzed and reviewed. It ruled that collection is properly analyzed as “seizure,” which if unlawful constitutes a separate injury from the “search” that takes place when records are analyzed either by a human being or a computer.

As the Supreme Court has recognized, in Fourth Amendment cases the analysis of standing is intertwined with the merits question of whether there has been an invasion of a protected privacy interest. Thus, the Second Circuit’s position on collection could have serious implications for other government programs beyond the standing question. One of these, as Jen points out, is the Microsoft/Ireland case (the Brennan Center, the ACLU and others filed an amicus brief in that case arguing that “in the case of intangible property such as electronically stored data, which can easily be duplicated in identical form, meaningful interference occurs the moment the property is copied.”)

Another set of programs for which “collection matters” are those conducted under Executive Order 12,333. Department of Defense directive 5240.1-R, which sets out procedures for intelligence activities that affect U.S. persons, states:

Information shall be considered as “collected” only when it has been received for use by an employee of a DoD intelligence component in the course of his official duties … Data acquired by electronic means is “collected” only when it has been processed into intelligible form. (Emphasis added.)

Although the directive does not explain what constitutes an “intelligible form” of electronic data, another regulation (USSID 18) states that information becomes “intelligible” and is therefore “collected” when a NSA analyst “intentional[ly] task[s] or select[s]” a communication of interest for “inclusion in a report or retention as a file record.” This is a critical distinction because protections for US persons under Executive Order 12,333, Presidential Policy Directive 28, and subsidiary regulations are triggered when information is “collected” per the government’s definition.

While the contexts are obviously different, the analytical question is analogous and worth thinking through, particularly since the DoD regulations in question relate to safeguards for information of US persons.

A final thought relates to Judge Sack’s concurring opinion and the weight he gives to adversarial proceedings in assisting judges faced with difficult national security cases. He details how, in the Pentagon Papers case, cross-examination by counsel for the New York Times cast doubt on the government’s contention that the release of the papers would seriously threaten national security, contributing to the court’s refusal to enjoin publication. Judge Sack concludes that:

It may be worth considering that the participation of an adversary to the government at some point in the FISC’s proceedings could similarly provide a significant benefit to that court. The FISC otherwise may be subject to the understandable suspicion that, hearing only from the government, it is likely to be strongly inclined to rule for the government. And at least in some cases it may be that its decision-making would be improved by the presence of counsel opposing the government’s assertions before the court.

The version of the USA Freedom Act that recently passed the House Judiciary Committee requires the court to appoint a panel of five special advocates who can be called upon when the court is considering a novel or significant construction of law. The special advocates are charged with advancing privacy interests, providing information on communications technology, or providing legal or other information that will aid the court. The FISA Court gets to decide when to call upon a special advocate and what documents and information are relevant to their duties and must be provided to them.

This is only a little stronger than the FISA Court’s current rules, which permit it to solicit the views of amici. Notably, the court has rarely done so and one judge who served on the court affirmatively opposed strengthening adversarial participation in its proceedings, possibly suggesting an institutional resistance to hearing from parties other than the government.

Congress should take Judge Sack’s opinion as an invitation to strengthen the USA Freedom Act’s provisions on adversarial participation. For the reason’s set out in the Brennan Center’s report on the FISA Court, I believe that Article III requires a more robust adversarial process. Reformers in Congress should ensure that the participation of a special advocate is not dependent on a decision by the FISA Court alone and ensure that the special advocate is notified of cases pending before the court, and is given access to all materials relevant to the controversy in which they are intervening. And, while there are some legal issues to be worked out, there should also be a mechanism for appeal in cases where the court rules against the special advocate.

While the Second Circuit’s opinion concludes one chapter in the post-Snowden story, it is by no means the end. Congress might yet act to reform Section 215. Challenges to the law are pending in the D.C. and Ninth Circuits, and the issue is surely headed to the Supreme Court. To be continued … 

About the Author(s)

Faiza Patel

Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, Former Senior Policy Officer at the Organization for the Prohibition of Chemical Weapons Follow her on Twitter (@FaizaPatelBCJ).