The 2nd Circuit Court of Appeals is the first federal appeals court to rule that the NSA’s cell phone data mining program is illegal. That’s good, right? Yeah, kinda. The problem is that it did not rule it unconstitutional, only that it isn’t authorized by Section 215 of the Patriot Act, which expires in a few weeks anyway. Orin Kerr has it exactly right:
Edward Snowden’s biggest leak was that the Foreign Intelligence Surveillance Court had interpreted Section 215 of the Patriot Act to authorize bulk collection of everyone’s phone records. This was astonishing news, as nothing on the face of the face of the statute suggested it had that anything like that broad a reach. Legal challenges followed, on both statutory and constitutional grounds.
This morning, the Second Circuit finally handed down its opinion on one of the pending legal challenges. It’s the first appellate court ruling on the issue. Today’s decision rules that the text of Section 215 does not authorize the program as a matter of statutory law. The Second Circuit does not reach whether the NSA program violates the Fourth Amendment.
My initial reaction, on a first read, is that the Second Circuit’s decision is mostly symbolic. As regular readers know, I agree with the court’s bottom line statutory analysis that Section 215 doesn’t authorize the NSA program. But while you would normally think that a ruling on such an important question by a court as important as the Second Circuit would be a big deal, I’m not sure the Second Circuit’s opinion actually matters very much.
The main reason is that Section 215 sunsets in three weeks. The Second Circuit ruling does not enjoin the NSA program. It does not rule on the Fourth Amendment question. It mostly interprets statutory language that goes off the books in a few weeks, with the understanding that the court’s ruling won’t be implemented by the district court in that time window. So from a practical perspective, it’s mostly symbolic. With that said, the decision is a rebuke to the Foreign Intelligence Surveillance Court for the FISC’s statutory analysis that approved the bulk telephone metadata program.
Congress is currently working on a reauthorization of the Patriot Act, including Section 215. Leadership from both parties wants to ram it through with little debate and they could easily allow explicit authorization for that program. Given the Obama administration’s steadfast defense of the program in court, there’s no doubt he would sign the bill if it did contain such a provision. So while I’m glad to see this ruling, it’s likely to have little to no effect at all on whether that program continues or not.
What the court should have ruled is that no wholesale data mining program involving large numbers of people who are not even suspected of doing anything wrong could possibly be constitutional, full stop. That is the only ruling consistent with the 4th Amendment. But the courts have been extraordinarily cowardly on illegal surveillance (and torture, and unlawful detention). At the mere whisper of the phrase “national security,” federal judges’ spines turn to goo and the constitution become little more than a faint memory.