A long time 12 days ago, I wrote a post sharply criticizing the Second Circuit for deciding not to decide the Fourth Amendment question in ACLU v. Clapper, which arises from the continuation of the NSA’s bulk collection of phone records until the end of the six-month transitional period created by the USA Freedom Act (a period that expires on November 29). In that post, I called the Court of Appeals “feckless” for concluding that, in light of the program’s imminent expiration, resolution of the underlying Fourth Amendment claim would be “fruitless.” As a result, readers may well assume that I think highly of the opinion issued yesterday by DC District Judge Richard Leon, which did reach the Fourth Amendment question, and which, along lines similar to his December 2013 ruling (which the DC Circuit subsequently vacated for lack of standing), held that the program violates the Fourth Amendment, and enjoined its continuing operation as applied to two plaintiffs.
As the old saying goes, “nope.” Instead, for reasons I elaborate upon below the fold, I fear that things have ended up precisely backwards — with the Second Circuit refusing to issue a ruling that could have had significant consequences, and with Judge Leon entering an injunction that will have precisely no impact (other than to waste a lot government lawyers’ and law clerks’ time) — and that could well lead future judges to stay their hand in a similar circumstance when they ought not to.
I. The Merits of Judge Leon’s Opinion
Let’s start with the merits. As readers may recall, this case was back before Judge Leon after an August 2015 ruling by the DC Circuit vacating Judge Leon’s initial ruling for lack of standing. As I explained in a lengthy post at the time, there was a lot to be critical of in the Court of Appeals’ holding, which appeared to suggest that the threshold for standing to obtain preliminary injunctive relief ought to be higher than the threshold for standing in other contexts (e.g., suits for declaratory relief or damages). In my view (and according to prior DC Circuit precedent), there are pretty strong arguments for exactly the opposite approach, but, at the very least, standing should be no different in such cases than in others. But they’re judges, and I’m not. And so, although Judge Sentelle (who clearly knew what would happen on remand) would have dismissed the suit altogether (hence his “dissent”), Judges Brown and Williams agreed to send the case back to the district court, “just in case” the plaintiffs could meet this higher standard.
Shockingly, on remand, Judge Leon had no trouble finding that at least two plaintiffs met this higher standard without difficulty. I somehow suspect that, if the DC Circuit ever revisits this case on the merits (more on why it won’t shortly), it won’t find that analysis especially persuasive. Then, turning back to the merits, Judge Leon returns to much of the Fourth Amendment analysis from his since-vacated December 2013 opinion, including his conclusion that bulk collection of third-party records goes beyond the parameters of the third-party doctrine as contemplated by Miller and Smith — especially in light of Jones, Riley, etc. Although I agree with Judge Leon on this point, I remain at least somewhat skeptical that the lower courts are fairly in a position to read so much into Jones’ and Riley’s tea leaves without further clarification from the Supreme Court (clarification that may be even further in the distance after Monday’s cert. denial in the Eleventh Circuit cell-site location information case). That is to say, I think we do have an objectively reasonable expectation of privacy in at least some contexts in which we provide certain data voluntarily to certain third parties (and, frankly, think most people would agree with this if presented with the right hypothetical). But I also think reasonable jurists can disagree on whether Jones and Riley settle that point beyond peradventure.
All that said, let’s suppose Judge Leon is right on the merits of his Fourth Amendment analysis. What are the implications of his decision? As I suggested to Foreign Policy’s Elias Groll, there simply aren’t likely to be any. This is so because of three different factors that come together in this case: the limited precedential value of district court opinions; the timing of the bulk collection program; and what’s likely to happen in the DC Circuit going forward.
II. The Timing of Judge Leon’s Opinion
In my post criticizing the Second Circuit’s decision not to decide the Fourth Amendment question in ACLU, I wrote the following:
the notion that constitutional adjudication of a claim with a short shelf-life is “fruitless” utterly misses the significance of the establishment of forward-looking judicial precedent, especially in a day and age in which courts are allowed to (and routinely do) avoid resolving the merits of constitutional claims in cases in which the relevant precedent is not “clearly established.” Maybe, if this were the kind of constitutional question that was unlikely to recur, there’d be more to the Second Circuit’s avoidance of the issue in this case. But whether and to what extent the Fourth Amendment applies to information we voluntarily provide to third parties is hardly that kind of question . . . .
In other words, precedent matters — today more than ever — even (if not especially) in cases in which courts nevertheless to decline to provide relief to the plaintiffs. But unlike the Second Circuit, Judge Leon’s ruling is not binding on any other judge in any other court (or even on his own). Whether or not circuit court opinions can ever create “clearly established” law, district court opinions can’t. And so there’s far less precedential value to a district court decision concerning a soon-to-expire government program.
As for the expiration, everyone agrees that, on November 29, the bulk phone records program in its current iteration must end, since that’s when the transitional period authorized by Congress in the USA Freedom Act expires. Although the Justice Department argued in its stay application that “the technical steps necessary to comply even with a targeted injunction would require months to complete,” in fact, the program will “transition” to the (debatably) more specific metadata collection program authorized by the USA Freedom Act in exactly 19 days. I’m still not convinced, for the reasons I wrote about in my earlier post, that these challenges become moot at that time — especially insofar as at least some of the litigants in these cases have also sought relief from retention of records collected prior to the program’s termination. But I do suspect that the DC Circuit will disagree — and will conclude that injunctive relief against the pre-November 29 bulk collection of telephone metadata becomes moot on and after that date. In practice, that means that, by the time the DC Circuit has a chance to actually decide the merits of the government’s appeal of yesterday’s ruling (during which it will surely be stayed), it will likely conclude that the case is moot — and thus vacate the decision below and dismiss the case in its entirety. In other words, the government is never going to have to comply with Judge Leon’s injunction — it will just have to spend time litigating it to the Court of Appeals.
So why would things have been any different in the Second Circuit? In my earlier post, I objected to the Court of Appeals’ decision to issue a ruling deciding not to decide the Fourth Amendment issue even while the dispute clearly remained live. The Second Circuit’s decision was handed down on October 29, 31 days before USA Freedom’s transitional period expired. And as I wrote then, it’s not nearly as clear to me that the party that lost on the Fourth Amendment issue would be entitled to a “Munsingwear” order from the Supreme Court after November 29 — meaning that there was at least a chance that a Fourth Amendment holding by the Court of Appeals, one way or the other, would survive November 29, and would thereby either (1) become precedent; or (2) become the appropriate subject of plenary Supreme Court review. But even if I’m wrong on that point (and the Supreme Court would have eventually issued a Munsingwear order), there still would have been a months-long period during which the Second Circuit’s opinion was binding law on the Fourth Amendment question — setting a precedent that, even if formally vacated by a Munsingwear order, still would have had practical and normative utility going forward.
Maybe this seems like splitting hairs — and maybe it is. But we sorely need judicial resolution, one way or the other, of the constitutional question at the heart of the challenges to bulk collection — whether and to what extent the third-party doctrine allows the government to bulk collect all data that Americans voluntarily share with third parties. That, to me, is the real end game here. And nothing that happened yesterday is likely to advance resolution of that question, one way or the other.