My (Mostly Critical) Thoughts on the August 2013 FISC Opinion on Section 215 - The Volokh Conspiracy (original) (raw)

The FISC has released an August 2013 opinion, authored by Judge Claire Eagan, on the lawfulness of the NSA’s telephony metadata program. I thought part of the opinion was persuasive but most of it was unpersuasive. Here are my thoughts on the opinion in the order that the issues appear in the opinion, which end up going from the less critical to the more critical:

1 )The Fourth Amendment analysis (pages 6-9) is short but correct based on current Fourth Amendment law. For a more detailed analysis of my own that reaches the same result, see here.

1. On pages 12-15, Judge Eagan compares FISA’s Section 215 with what she describes as its criminal law analog, 18 U.S.C. 2703(d) of the Stored Communications Act. I found this section a bit strange. I’m not entirely sure of the point of the comparison, but my sense is that it is designed to bolster the conclusion that Congress intentionally created Section 215 to have more ex post review and less ex ante review than its criminal law cousins — thus suggesting a Congressional endorsement of the “get everything, look through it later” nature of the telephony metadata program.

If that’s the argument, though, it strikes me as weak. If you’re looking through the surveillance laws for comparisons between criminal law and national security law cousins, the obvious comparison would be between 18 U.S.C. 2703 and 18 U.S.C. 2709, the National Security Letter authority, not between 18 U.S.C. 2703 and Section 215. On its face, Section 215 is the authority that is primarily about obtaining physical objects, which would be analogized to the criminal law authority for a grand jury subpoena duces tecum. So the analogy between 2703(d) and 215 seems quite forced. Further, it’s pretty ironic to say that the higher standard for 2703(d) indicates a congressional wish to have less ante review in Section 215: Congress raised the standard for 2703(d) orders in 1994 to increase privacy protections, so I find it a bit strange to read that as an implicit endorsement of expanded government power in the Section 215 setting. But then the discussion comparing Section 215 and 18 U.S.C. 2703(d) is itself sort of puzzling.

1. On the statutory issue, the key issue is what “relevant” means; the analysis here struck me as quite weak. On pages 18-19, Judge Eagan suggests that relevance is only the standard in evidence law — does the information “bear upon” the investigation? Effectively, is there anything in there that the government might want to know? By that standard, the only issue is whether there is “reasonable grounds” to think that somewhere in the haystack there might be something relevant, which obviously is very easy to meet. But then on page 20, Judge Eagan refers to an earlier decision indicating that the relevance standard requires a showing of necessity — that under the earlier decision, mass collection becomes relevant only if it is necessary to find the bad guys. Judge Eagan notes that the government claims that it needs the whole haystack to find the needle, and that the government says that getting everything is necessary. The Court then just concludes that this statement of need “is sufficient to meet the low statutory hurdle set out in Section 215 to obtain a production of records.” (p.22-23).

I don’t find this analysis helpful. Recall my criticism of the DOJ white paper:

The Administration presumably would argue that the Section 215 program is different because getting the whole database is in fact necessary: If the government doesn’t have the whole database, many of the records will be destroyed before the government can find the links it is looking for.

Perhaps that’s right, but that argument would open up a difficult question of what the frame of reference is for assessing necessity. Does the risk that customer metadata would be deleted in the ordinary course of business create a “necessity” to overcollect? Do you assume that the government has a right to get access to all metadata of every telephone user in the United States, and that overcollection is “necessary” to effectuate that? Or do you assume that the government only has a right to get access to relevant metadata that exists at the time the government identifies the relevance of that specific metadata? I’m not sure there is a doctrinal answer to that issue, but the white paper doesn’t appear to acknowledge and confront the question.

In Judge Eagan’s opinion, we don’t even get those issues: We just get a recital of the government’s view and then a statement that the claim of necessity “is sufficient.” But why is that sufficient? We can debate what the relevance standard should mean, but it seems strange that the govermment’s previously secret claim that the entire database has to be turned over itself makes it legal to turn over the entire database first and then search it later. That reading allows the government to say what the statute means: The government can get whatever the government says it needs, just because the government says it needs it, as it becomes “relevant” whenever the government says it needs it.

1. Finally, I was deeply unimpressed by the last section of the opinion (pages 23-27), which argues that the FISC’s reading of the statute is presumptively correct because Congress knew about what the FISC was doing and didn’t amend the statute when it reenacted Section 215 in 2011. While it’s true that statutory reenactment has been construed a kind of silent approval of prior interpretations in some caselaw, I don’t know how on earth that can apply to secret court rulings by a district court that were merely made available to members of Congress, most of whom never learned of the opinions and would have no idea what they were looking at if they did. The idea underlying the doctrine of ratification is that established cases become part of the background understandings of the law. But it’s hard for me to see how decisions from a non-precedential secret court can form that background understanding, especially given that few members of Congress knew of the opinions and no one in the public did.