Am. Civil Liberties Union v. Clapper

• Decision Date: 29 October 2015
• Docket Number: Docket No. 14–42–cv.
• Parties: AMERICAN CIVIL LIBERTIES UNION, American Civil Liberties Union Foundation, New York Civil Liberties Union, and New York Civil Liberties Union Foundation, Plaintiffs–Appellants, v. James R. CLAPPER, in his official capacity as Director of National Intelligence, Michael S. Rogers, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service, Ashton B. Carter, in his official capacity as Secretary of Defense, Loretta E. Lynch, in her official capacity as Attorney General of the United States, and James B. Comey, in his official capacity as Director of the Federal Bureau of Investigation, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

804 F.3d 617

AMERICAN CIVIL LIBERTIES UNION, American Civil Liberties Union Foundation, New York Civil Liberties Union, and New York Civil Liberties Union Foundation, Plaintiffs–Appellants

v.James R. CLAPPER, in his official capacity as Director of National Intelligence, Michael S. Rogers, in his official capacity as Director of the National Security Agency and Chief of the Central Security Service, Ashton B. Carter, in his official capacity as Secretary of Defense, Loretta E. Lynch, in her official capacity as Attorney General of the United States, and James B. Comey, in his official capacity as Director of the Federal Bureau of Investigation, Defendants–Appellees.

Docket No. 14–42–cv.

United States Court of Appeals, Second Circuit.

Argued: Sept. 2, 2015.

Decided: Oct. 29, 2015.

Alexander Abdo, American Civil Liberties Union Foundation (Jameel Jaffer, Patrick Toomey, American Civil Liberties Union Foundation, New York, NY; Christopher T. Dunn, Arthur N. Eisenburg, New York Civil Liberties Union Foundation, New York, N.Y., on the brief), New York, N.Y., for Plaintiffs–Appellants.

Henry C. Whitaker, United States Department of Justice (Benjamin C. Mizer, Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, DC; Douglas N. Letter, H. Thomas Byron III, Civil Division, Appellate Staff, United States Department of Justice, Washington, DC; Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y.; David S. Jones, John D. Clopper, Benjamin H. Torrance, Assistant United States Attorneys, New York, N.Y., on the brief), Washington, DC, for Defendants–Appellees.

Before: SACK and LYNCH, Circuit Judges, and BRODERICK, District Judge.^*

Opinion

GERARD E. LYNCH, Circuit Judge:

This opinion concerns the effect of the passage of the USA FREEDOM Act (“Freedom Act”) on ongoing litigation surrounding the legality of the government's bulk telephone metadata collection program. We addressed the merits in an earlier opinion, ACLU v. Clapper, 785 F.3d 787 (2d Cir.2015). In that opinion we held that the bulk telephone metadata collection program was not authorized by provisions of the USA PATRIOT Act (“Patriot Act”). Subsequent to that decision, Congress passed the Freedom Act, which effectively put an end to the telephone metadata program and created an alternative program, but provided for a 180–day transition period. The effect of this transition period is the primary issue before the Court. Appellants move for a preliminary injunction to bar the government, during the pendency of the litigation, from collecting Appellants' call records under the telephone metadata program, to require the government to quarantine all of Appellants' call records already collected under the program, and to prohibit the government from querying metadata obtained through the program using any phone number or other identifier associated with them. While we find that Appellants' claims are not moot at this time, we decline to disturb the decision by Congress to provide for a 180–day transition period to put an orderly end to the telephone metadata program. We therefore deny the motion for a preliminary injunction.

BACKGROUND

The underlying appeal concerns the legality of the bulk telephone metadata collection program, under which the National Security Agency (“NSA”) collects metadata about telephone calls made by and to Americans, and aggregates those metadata into a repository that can later be queried. Telephone metadata does not include the contents of a telephone call, but rather the details about the call, such as the length of the call, the phone number from which the call was made, and the phone number at which the call was received—information sometimes referred to as call detail records.

Attention to the issue of bulk surveillance of American citizens by the government has sharply increased among the American public, the courts, and the legislature since Edward Snowden began his highly publicized disclosures of confidential information about the program in 2013. Recently, we issued an opinion in this case, finding that the bulk telephone metadata program in use by the NSA was not authorized by § 215 of the USA PATRIOT Act of 2001, Pub.L. No. 107–56, 115 Stat. 272 (2001), which amended the Foreign Intelligence Surveillance Act of 1978 (“FISA”), Pub.L. No. 95–511, 92 Stat. 1783 (1978) (codified as amended at 50 U.S.C. §§ 1801 et seq. ). Shortly thereafter, Congress allowed the Patriot Act to expire, then passed the USA FREEDOM Act of 2015, Pub.L. No. 114–23, 129 Stat. 268 (2015), which altered § 215 in significant ways.

I. Section 215

In 1978, Congress enacted FISA, comprehensive legislation aimed at curtailing abuses and delineating procedures to be employed in conducting surveillance in foreign intelligence investigations. Congress amended FISA after the terrorist attacks of September 11, 2001, in the Patriot Act.

Section 215 of the Patriot Act allows the director of the FBI or his designee to

make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.

50 U.S.C. § 1861(a)(1). In its current form, in effect until November 29, 2015, the provision requires such an application to include

a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.

Id. § 1861(b)(2)(A).

II. The May 7 Order

On June 11, 2013, the appellants in this matter, the American Civil Liberties Union and American Civil Liberties Union Foundation (collectively, “ACLU”) and the New York Civil Liberties Union and New York Civil Liberties Union Foundation (collectively, “NYCLU”) sued the government officials responsible for administering the telephone metadata program, challenging the program on both statutory and constitutional grounds and seeking declaratory and injunctive relief. Appellants' complaint asked the court to declare that the telephone metadata program exceeded the authority granted by § 215, and also violated the First and Fourth Amendments to the U.S. Constitution. The complaint also asked the court to permanently enjoin the government from continuing the program, and to order the government to “purge from their possession all of the call records of Plaintiffs' communications” collected in accordance with the program. Complaint at 10, ACLU v. Clapper, No. 1:13–cv–03994–WHP (S.D.N.Y.2013).

On May 7, 2015, this Court held that § 215 of the Patriot Act did not authorize the bulk telephone metadata program. We reasoned that if Congress had intended to authorize bulk collection of virtually all metadata associated with telephone calls made by and to Americans, it would have done so explicitly. The collection of these call detail records was not “relevant” to authorized counterterrorism investigation by the government under 50 U.S.C. § 1861(b)(2)(A), and thus, the telephone metadata program exceeded the authority granted by FISA. Clapper, 785 F.3d at 818–19, 826.

III. The USA FREEDOM Act

Section 215, along with certain other provisions of the Patriot Act, expired on June 1, 2015. See PATRIOT Sunsets Extension Act of 2011, Pub.L. No. 112–14, 125 Stat. 216 (2011). On June 2, 2015, Congress passed the Freedom Act, which the President has signed into law. The Freedom Act amends § 215 in significant ways.

The Freedom Act amends § 215 of the Patriot Act to permit the government to collect call detail records under 50 U.S.C. § 1861 only if it meets certain “additional requirements,” including a “reasonable, articulable suspicion that such specific selection term is associated with a foreign power ... or an agent of a foreign power engaged in international terrorism or activities in preparation therefor.” USA FREEDOM Act § 101(a)(3). This provision provides for more narrowly tailored and targeted collection of call detail records. Section 101 also requires the government to adopt minimization procedures that “require the prompt destruction” of call detail records produced that it determines are not foreign intelligence information. Id. § 101(b)(3)

Section 103 of the Freedom Act, titled “Prohibition on Bulk Collection of Tangible Things,” states that “[n]o order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term” that meets certain requirements. Id. The purpose of § 103 is to “make[ ] clear that the government may not engage in indiscriminate bulk collection of any tangible thing or any type of record.” H.R.Rep. No. 114–109, pt. 1, at 18 (2015). Section 103 is also intended to “restore meaningful limits to the ‘relevance’ requirement of Section 501, consistent with the opinion of the U.S. Court of Appeals for the Second Circuit in ACLU v. Clapper .” Id. at 19.

Largely at issue in the present dispute is § 109, titled “Effective Date,” which delays the effective date of §§ 101–103 above, sections dealing specifically with the telephone metadata program. Section 109 states, “The amendments made by sections 101 through 103 shall take effect on the date that is 180 days after the date of the enactment of this Act.”¹ Section 109 further states that

[n]othing in this Act shall be construed to alter or eliminate the authority of the Government to obtain an order under title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq. ) as in effect prior to the effective date described in subsection (a) during the period ending on such effective date.

USA

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