The U.S. Court of Appeals for the 2d Circuit ruled on May 7 that the NSA’s telephone data collection program under the USA Patriot Act was illegal. The decision related to the collection of telephone metadata under Section 215 of the Act. The decision in ACLU v. Clapper came as the statute nears its expiration date. Julian Sanchez of the Cato Institute discusses the court ruling in this report.
Sanchez notes that the 2d Circuit did not decide on the constitutionality of the provision in question. This accords with normal appellate procedure of not reaching a constitutional issue if a case can be decided on a narrower ground. However, the constitutional question remains, something that was touched upon in Justice Sotomayor’s concurring opinion in U.S. v. Jones, the third party doctrine and the idea of the reasonable expectation of privacy.
The Fourth Amendment was written two hundred years before the advent of the Internet. Now, with servers worldwide that contain all kinds of bits of information about everyone who uses the Internet or has been the subject of something on the Internet, it may be time to revisit what the Fourth Amendment means, Sanchez suggests. Otherwise, we run the risk that the Fourth Amendment will be rendered meaningless, at least as to large data collection efforts such as the NSA was conducting.
As to what the NSA will do in light of this decision, Sanchez says that they may not need to do anything. The court did not choose to enjoin what the NSA has been doing, in part because Congress is considering how and whether to reauthorize Section 215. Sanchez points out that the Foreign Intelligence Surveillance Court is not bound by the 2d Circuit’s opinion. However, the intelligence community seems favorably inclined towards eliminating the massive information gathering effort and instead getting telephone records as needed from telephone companies. So if the program goes away, perhaps it will not be missed.
Julian Sanchez, a senior fellow at the Cato Institute, studies issues at the busy intersection of technology, privacy, and civil liberties, with a particular focus on national security and intelligence surveillance. Before joining Cato, Sanchez served as the Washington Editor for the technology news site Ars Technica, where he covered surveillance, intellectual property, and telecom policy. He has also worked as a writer for The Economist’s Democracy in America blog and as an editor for Reason magazine, where he remains a contributing editor. The Legal Broadcast Network is a featured network of the Sequence Media Group.