Federal Appeals Court Questions Government Phone Surveillance Legitimacy
A federal appellate court reviewed one of the key challenges issued in the past year to the U.S. government’s bulk collection of phone metadata under Patriot Act Section 215. The American Civil Liberties Union faced off Tuesday in oral argument against Assistant Attorney General Stuart Delery in the 2nd U.S. Circuit Court of Appeals in New York for ACLU v. Clapper. Judges expressed skepticism about certain government arguments for why it needed such bulk collection, all while repeatedly considering the status of congressional and Obama administration efforts to overhaul surveillance law.
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The Supreme Court may have to weigh in, as some lawmakers and observers have said would be appropriate, considered Judge Robert Sack and ACLU staff attorney Alex Abdo. Sack pointed out that two district courts over the past year came to very different conclusions about phone surveillance and whether it likely violates the Fourth Amendment -- one under review in Tuesday’s oral argument. The D.C. Circuit is expected to hold oral arguments for the other district court case, that one involving activist Larry Klayman, Nov. 4. But suppose the 2nd Circuit and the D.C. Circuit affirm the respective very different decisions, Sack posed. “Are [government officials] allowed to get records in D.C. and not in New York?” Sack asked.
The government would likely seek a stay from the D.C. Circuit in that case, and the Supreme Court would probably have to step in, Abdo said. Sack considered whether the 2nd Circuit should give a stay as all these other factors get resolved, even if the court agrees with the ACLU. “We want the Supreme Court to have a kick at the ball,” Sack said, also considering implications of what would happen if the court granted an injunction and “suppose we're wrong and somebody blows up a subway train” in the absence of phone surveillance tools.
Judge Gerard Lynch emphasized the potential for commercial collection of phone data as well as government collection. The ACLU listed a “parade of horribles” about what the government could do with metadata, Lynch said. “Couldn’t Verizon find out those things if it chose? ... Verizon could do that, couldn’t they?” He suggested Verizon “might be able to make money” and be motivated to “create a list,” perhaps of women with unwanted pregnancies and then sell it to “Abortions R Us.” Verizon has metadata and “presumably has the computer capacity to probe [that metadata] if they chose,” Lynch said. Abdo countered that some consumer regulations may mitigate what a company can really do. Sack also highlighted how telling metadata can be and asked “whether the methods have become so sophisticated of analyzing this kind of data” that the government is “finding out content,” wondering if the idea had any “oomph.” Lynch did say the court should be “cautious” in issuing any constitutional findings. Judges also pressed Delery on whether Section 215 authorizes collection of bulk records beyond phone metadata, such as banking records.
"The ACLU has drawn a favorable panel,” said George Washington University Law School professor Orin Kerr in a Lawfare Institute blog post (http://bit.ly/W7bXG4). “Judges Lynch and Sack were (respectively) the author and one of the joiners of the Second Circuit’s surprising 2011 decision making it very easy to establish standing to challenge secret surveillance under Section 702 of [the Foreign Intelligence Surveillance Act].” The panel’s other judge, Vernon Broderick, has been a member of the National Association of Criminal Defense Lawyers, which prioritizes Fourth Amendment protections, Kerr said.
President Barack Obama and national security officials have said alternatives to bulk collection are available, Abdo said. “Then why did he send his lawyers here to say that you should lose?” Lynch countered. Obama is not ready to say bulk collection is unconstitutional but has outlined a desire for legislative overhaul, Abdo said. Such an overhaul could proceed under the USA Freedom Act, of which the House passed a version this summer and that the Senate plans to take up with more aggressive privacy protections this fall. Abdo attacked the phone surveillance program on constitutional grounds based on Fourth Amendment protections of privacy. Section 215 never should have applied to call records, Abdo contended, saying the ACLU is “entitled to a remedy” even if Congress overhauls surveillance law. He made objections under the Administrative Procedure Act.
Delery, speaking for the government, said the phone surveillance tools have been “considered and approved by all three branches of government” and are “designed to be forward looking ... to detect and disrupt future [terrorist] plots.” He defended the program’s legitimacy and its approval by Congress, prompting Abdo’s disagreement during his rebuttal time. Delery’s legal theories would provide a “road map” to the government collecting records for countless people “who did nothing wrong,” Abdo said. “Many members of Congress were not aware of the program,” are not receiving appropriate “legal analysis” and are “not allowed to discuss it with their colleagues and constituents,” he said.(jhendel@warren-news.com)