Our good friend and Georgetown Law Professor Laura Donohue has been kind enough to share with us an advance draft of her latest article, “Bulk Metadata Collection: Statutory and Constitutional Considerations,” which is forthcoming in “JLPP”: the Harvard Journal of Law & Public Policy, and derived from testimony she delivered to the Senate Judiciary Committee earlier this month. And although there have already been efforts at defending the metadata program in the blogosphere (see, e.g., Steve Bradbury and, somewhat more equivocally, David Kris), Laura’s paper is the first full-throated (and dazzlingly comprehensive) argument against the metadata program—on both statutory and constitutional grounds. In that regard, it’s a must-read for those of any and all persuasions—including those new to the complex world of FISA.
The heart of Laura’s paper is a three-pronged argument against the bulk metadata program: that it’s inconsistent with (1) Congress’s intent in enacting FISA back in 1978; (2) Congress’s more specific intent in enacting section 215 of the PATRIOT Act in 2001; and (3) the Fourth Amendment.
To unpack this thesis, Laura begins in Part I by situating the metadata program within the broader context of FISA itself—retracing the origins of the 1978 statute and the key strategic and tactical choices reflected in FISA as enacted, choices that were necessarily informed by Congress’s experience with, and reaction to, the perceived widespread abuses of intelligence gathering authorities throughout the 1960s and 1970s. As is the case with all of Laura’s scholarship, her strengths as a historian come through both in the retelling of the abuses that helped to precipitate FISA and in documenting the specific ways in which FISA’s provisions were meant to ward against similar abuses going forward. One can’t read FISA in a vacuum, and Laura’s paper provides vital context to the contemporary debate over telephony metadata.
Situating section 215 against that background—and telling the story of its own evolution—helps to underscore the larger thesis of Part II of the paper, i.e., that the current interpretation of section 215 is inconsistent with what Congress intended. Although strands of this argument have already been raised elsewhere (see, e.g., Marty’s post), Laura’s analysis provides the missing link—driving home why the currently prevailing interpretation of section 215 is so out of whack with what the provision was originally contemplated to allow.
But lest readers assume that Part III rehashes the arguments for why the metadata program is inconsistent with the Fourth Amendment, Laura offers a host of new—and critical—insights into the constitutional question, explaining why it’s not as easy as it seems to pigeonhole metadata into the third-party doctrine, given both the intrinsic limits on that doctrine and the more deeply ingrained historical and constitutional opposition to “general warrants.”
Finally, Part IV turns to the ongoing reform conversations, and again uses the benefits of historical hindsight to illuminate the relative utility of various of the existing proposals. As Laura writes,
Inserting adversarial counsel into the FISA process, creating a repository of technological expertise for FISC and FISCR, restoring prior targeting, heightening protections for U.S. persons, further delimiting relevant data, narrowing the definition of “foreign intelligence” to exclude “foreign affairs”, and requiring the government to demonstrate past effectiveness prior to renewal orders offer some possibilities for the future of foreign intelligence gathering in the United States.
To be sure, at 86 pages and over 48,000 words, Laura’s paper is not exactly light reading. But in my view, that’s one of its strengths—showing just how much water has flowed under these bridges, and why the limitlessness of the government’s reading of section 215 is more than just a contemporary civil liberties issue; it’s an historical end-run, as well. Simply put, those who support the metadata program in its current form ignore Laura’s analysis at their peril; and those who wish to learn more about what all the hubbub is about would have a hard time finding a more comprehensive and incisive case against the increasingly alarming status quo.