A Win for Common Sense, A Loss for Agency Deference: ACLU v. Clapper
Edward Snowden shocked the world when he leaked highly classified and confidential information in June 2013 regarding government authorized surveillance of telephone calls in the United States. The American Civil Liberties Union then filed suit against James Clapper, the Director of National Intelligence. The district court returned a verdict in favor of the government concluding that “the NSA’s bulk telephony
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metadata collection program is lawful.” Of course, the ACLU appealed. On May 7th 2015, the 2nd Circuit Court of Appeals reversed the district court’s decision and concluded that “the program exceeds the scope of what Congress has authorized. . . .” Among the many administrative law issues that the court considered, the court debated and discussed the scope of the term “relevant” as used in § 215 of the PATRIOT Act in relation to the breadth of the metadata collection program.
The Metadata Program and § 215
According to the appellate court opinion, the metadata program was a sprawling endeavor by the government to require telephone companies to provide “‘on an ongoing daily basis’” information to the NSA regarding calls where at least one party was located in the United States. Section 215 authorizes the government to request “an order requiring the production of any tangible things . . .” to investigate terrorism. Further, the law (50 U.S.C § 1861) stipulates that the request should “include a statement of facts . . . that the tangible things are relevant to the authorized investigation . . . .” (emphasis added). One question before the court was whether the data gathered from NSA’s very broad metadata collection program constituted something that was relevant to an authorized investigation.
The Arguments on Authorization
One of the cruxes of the opinion is whether Congress authorized the NSA to act in such a broad fashion. If the court determined that “relevant” included the NSA’s broad data gathering program, then the NSA would be acting within the bounds that Congress laid out for them in § 215. The government contended that relevance “is an extremely generous standard.” The court noted that the government compares the standard of relevance meant to be used in this context to the standard of relevance used in grand jury investigations. That is to say the government could require dissemination of records in order to search for the information that would help prevent future terrorist attacks. The court observed that this analogy is even supported by the legislative history behind § 215. On the other side, the ACLU argued that “relevance is not an unlimited concept, and that the government’s own use (or non-use) of the records obtained demonstrates that most of the records sought are not relevant to any particular investigation.” They asserted that the government is not seeking the records “to review them in search of evidence bearing on a particular subject . . .” but instead wants create a “vast data bank, to be kept in reserve and queried if and when some particular set of records might be relevant to a particular investigation.” Ultimately, the court concluded that “relevant” had a more narrow definition than the government argued, therefore the NSA’s metadata collection program is unlawful.
The Court’s Careful Balancing Act
Despite compelling arguments from the government, the court reached the right conclusion. The court recognized that the government used legislative history effectively in its argument and references discussion from the 2006 PATRIOT Act reauthorization debate where Senator Kyl likened the scope of the § 215 relevance standard to the standard that has been effective during a grand jury investigation while prosecuting other crimes. However, the court ultimately used this legislative history and testimony against the government. The judge notes that according to Morissette v. United States, when Congress acts to enact a term of art into law that has a commonly recognized legal meaning, like relevance in this case, then it also adopts all of the ideas that have developed and defined that law over the years. The case holds that there is an important distinction between a specific act investigated by the grand jury and the broad demands of the government in requesting telephone metadata. Further, the court pointed out that this metadata bank isn’t even useful until the government has a reason to search through it, which is fundamentally different from the traditional use of document gathering in a grand jury setting. This is a good use of legislative history by the court because, while the government did have clear intentions of adopting this standard, their use of this floor debate in construing the term “relevant” cuts against them under the Morissette standard.
Additionally, the court utilized the dictionary definition to interpret the statute. The court reasoned that the government reads the term “authorized investigation” out of § 215 by gathering the information and then using it when a need arises. The Oxford English Dictionary defines “investigate” as: “[t]o search or inquire into; to examine (a matter) systematically or in detail; to make an inquiry or examination into.” The court found the definition of “investigate” contemplates the specificity of a particular investigation. This is a good use of textualism as a cannon of statutory interpretation. It is the words in the statute that were enacted, not the overarching policy goals that the public did not even know about until they were controversially leaked. Based on this court’s reasoning, the text of the statute does not support an overbroad metadata collection program and, therefore, the NSA’s metadata program exceeded the scope of relevant as used in § 215.
A Win for Common Sense, A Loss for Agency Deference
While the term “relevant” was construed correctly, and the construction is likely to sit well with the general public, there is an argument to be made that the court should not have interfered with what the NSA clearly thought was a proper construction of the term. The NSA was tasked with implementing measures to combat terrorism. It then designed a program and followed the proper procedures to obtain authorization to carry out the plan. Now the program is getting all kinds of negative backlash. This seems to run counter to the theory of agency deference due to its place in the Constitutional order (Chevron) and agency expertise (Mead). However, the court walked a tight rope and made good use of the traditional tools of statutory interpretation in deciding that the government’s program was over broad given the statute use of the term “relevant.” As such, the Second Circuit reached the correct conclusion: the NSA was not authorized to conduct this broad metadata collection because the information was not relevant to an investigation.
Now that Congress has reformed the collection of metadata through the USA FREEDOM Act, the statutory interpretation in ACLU v. Clapper may be §215’s lasting legacy.
Michael Whittington is from Arlington, Texas and received his philosophy degree from the University of Texas at Arlington. He is set to graduate from Boston University School of Law with a Juris Doctor in Spring of 2016. Michael hopes to work with legislation in some capacity regardless of the path his career takes after law school.
