National Security Agency campus in Fort Meade, Md.
National Security Agency campus in Fort Meade, Md. (AP/Patrick Semansky)

The National Security Agency’s collection of data from the phone records of millions of Americans for use in terrorism investigations was defended by a government lawyer Tuesday as the legitimate and constitutional expression of the will of Congress.

Assistant U.S. Attorney General Stuart Delery told the U.S. Court of Appeals for the Second Circuit that Congress knew what it was doing when it passed and reauthorized a Patriot Act provision that allows the NSA to sweep up millions of phone records to mine them for data that links foreign terrorist organizations to people in the United States (See Brief).

But Second Circuit Judges Gerard Lynch, Robert Sack and Southern District Judge Vernon Broderick, had a number of questions for Delery, including whether Congress was aware of the scope of the Bulk Telephony Metadata Program when it was reauthorized with virtually no debate.

Lynch took issue with Delery’s argument that the circuit lacked jurisdiction, saying it forced the court to make a choice that could lead to a far more sweeping decision.

“You’re requiring us to decide a question of constitutional law—to decide either … the government is precluded from doing this kind of thing,” Lynch said. “Or, on the other hand, to say that nobody has any constitutional right to privacy on anything, anymore.”

Delery, during two hours of arguments in American Civil Liberties Union v. Clapper, 14-42-cv, told the court that the program, which collects details that include the time and duration of calls to and from the United States, was “considered and approved by all three branches of government.”

“You actually don’t want us to address whether it was authorized by one of them,” Lynch said, referring to Delery’s argument that the Second Circuit lacks jurisdiction to consider challenges to the Patriot Act approved by the Foreign Intelligence Surveillance Court and reauthorized by Congress as Section 215, 50 U.S.C. §1861.

Alex Abdo of the American Civil Liberties Union argued that many members of Congress had not read the provision when it was reauthorized in 2010 and 2011, and there is a presumption that a court has the power to review agency action under the Administrative Procedure Act, in this case the NSA and the FBI (See Brief).

Abdo stressed that Congress could have explicitly denied a remedy for targets of the phone program had it wanted to do so, and it fell to the court to take on a challenge “when the government scales up an intelligence operation from targeted to dragnet.”

Delery was asking the panel to uphold Judge William Pauley’s 2013 refusal to grant an injunction to the ACLU (NYLJ, Dec. 30, 2013). He insisted that judicial review was precluded and that the executive and legislative branches, coupled with the Foreign Intelligence Surveillance Court (FISC), had approved the program.

The government began mining phone records in the wake of the Sept. 11, 2001 terror attacks but it did not obtain FISC approval until 2006.

The measure was reauthorized by Congress in 2010 and again in 2011. Two senators, Ron Wyden and Mark Udall of the Senate Select Committee on Intelligence, sounded the alarm in 2011, saying the government had adopted a “secret interpretation” of §215 and Americans would be “stunned” by it.”

Then came the revelations in 2013 about the scope of the program and the ACLU, which learned that the government had collected its phone records with Verizon, sued in the Southern District.

Pauley, however, rejected their argument that the Stored Communications Act barred the government from using §215 to collect phone data, which authorizes bulk data collection under a broad standard of “relevance” to terror investigations.

Pauley also said, “the collection of virtually all telephone metadata is ‘necessary’ to permit the NSA … to do … algorithmic data analysis.”

But the circuit panel Tuesday repeatedly asked Delery why, if the government can collect and mine the phone data without restraint under §215, it could not do the same with bank records or credit card records.

Delery did not get far with his argument that phone records were uniquely suited to counterterror operations in that the government can combine them with other tools to act quickly.

Both Broderick and Lynch doubted the difference, with Broderick saying the same sort of connections could be made by aggregating bank records and Lynch commenting, “You can collect all there is to know about anybody and have it all in one big government cloud, but I don’t understand what’s so special about telephone records.”

Delery answered that it allows for “the rapid detection of connections—the purpose is to be able to identify a known person with a connection to a known terror group.”

Abdo argued that Pauley should have granted the preliminary injunction because “The legal theories [advanced by the government] are a road map to a world in which the government routinely collects vast quantities of information about Americans who have done nothing wrong.”

“I don’t think that’s the world that Congress envisioned when it enacted §215 and it’s certainly not the world that the framers envisioned when they crafted the Fourth Amendment,” he said.

The judges have been presented with somewhat of a moving target, as President Barack Obama said earlier this year he would end the program and seek legislation that will improve privacy protections “while maintaining the tools our intelligence and law enforcement agencies need to keep us safe.”

Sack told Abdo, “there’s been a fair amount of water under the bridge” since Pauley dismissed the challenge in December 2013.

Sack raised the possibility that legislation could be passed, and Congress could approve keeping phone data in the hands of Verizon and other providers and opt for the increased use of administrative subpoenas when investigators need the data. “If that was done, if Congress were to pass such a law, wouldn’t that end questions here?” Sack asked.

“We would love it if the government ended the bulk collection of phone records,” Abdo said. “But that’s not the current state of affairs” and “it would be unwise to expect this Congress to act soon.”

Delery said the case was governed by Smith v. Maryland, 442 U.S. 735 (1979), where the U.S. Supreme Court held that telephone users lack a Fourth Amendment privacy interest in the telephone numbers they dialed because they voluntarily give that information to their telephone company.

Abdo countered that the use of a pen register against a criminal suspect in the Smith case was a far cry from the mass accumulation of phone data on the chance it may be useful to derail a terror attack. The way the data mining program works, he said, means the government is not just collecting records of phone calls, it is collecting content.

When Broderick asked Abdo, “is it your contention it’s unconstitutional to collect the information that was at issue in Smith?” Abdo answered in the affirmative and said, “I think the Supreme Court would have” looked at Smith very differently if it involved the mass collection of data.

Lynch asked of Abdo, “let’s say quantity is quality here” and the nature of the intrusion is different from Smith, then is the government nonetheless correct when it argues that there is not much of an expectation of privacy?

Sack sounded that theme as well, wondering whether, the moment renegade Edward Snowden “disclosed the existence of this program, we don’t have any real expectation of privacy?”

“Tell us how the three of us figure out what is reasonable and not reasonable,” he said to Abdo.

Tuesday’s arguments are being rebroadcast by C-SPAN. The case appears primed for consideration by the U.S. Supreme Court, as Pauley came to the opposite conclusion of another district judge when he issued his opinion in December (NYLJ, Dec. 30, 2013).

Judge Richard Leon of the U.S. District for the District of Columbia, also ruling in December, said the program “almost certainly” infringes the Fourth Amendment right to be free from unreasonable searches and seizures (NYLJ, January 8, 2014).

Given the fluid situation, Sack asked whether the circuit, should it rule for the ACLU, then issue a stay.

“Might we not say, ‘Great, we agree with you but there’s other litigation going on. We want the Supreme Court to have a kick at the ball’,” he said. “And we’re very much concerned, supposing we’re wrong and somebody blows up a subway train. Does it make sense for us to say, ‘OK, here are our views’ and then wait until the D.C. Circuit speaks and until the Supreme Court has an opportunity to speak before actually making an order?”