On June 11, 2013, the ACLU and the N.Y. Civil Liberties Union filed this lawsuit in the U.S. District Court for the Southern District of New York against the National Security Agency ("NSA"). The organizations served as both plaintiff and counsel, and sought an injunction permanently enjoining the government's mass call-tracking program and requiring the government to purge from its possession all of the plaintiffs' call records already collected, claiming that the NSA's ongoing tracking of their phone calls exceeded statutory authority under the Foreign Intelligence Surveillance Act ("FISA") and violated the First and Fourth Amendments. Specifically, the plaintiffs claimed that the NSA's surveillance invaded their privacy, threatened to dissuade potential clients and others from contacting them, and compromised their ability to serve their institutional missions and their clients' interests. The plaintiffs contended that the government's program violated the Fourth Amendment because the surveillance carried out was warrantless and unreasonable, and violated the First Amendment by substantially and unjustifiably burdening the plaintiffs' rights to associate when more narrow methods could have been used to achieve the government's ends.
On August 26, 2013, the plaintiffs moved for a preliminary injunction to (1) bar the government from collecting their call records under the government's mass call-tracking program, (2) require the government to quarantine all of their call records already collected under the program, and (3) prohibit the government from querying metadata obtained through the program using any phone number or other identifier associated with them.
On the same day, the NSA moved to dismiss the plaintiffs' complaint. The NSA contended that the District Court lacked jurisdiction to entertain the plaintiffs' claims, and the plaintiffs failed in any event to state claims on which relief may be granted. Specifically, the NSA claimed that the plaintiffs lacked standing, that Congress impliedly precluded judicial review of the mass call-tracking program, that the program was authorized under the FISA, and that the program did not violate the First and Fourth Amendments.
On December 27, 2013, the District Court denied the ACLU's motion for a preliminary injunction and dismissed the case. 959 F. Supp. 2d 724 (S.D.N.Y. 2013). Judge Pauley found that the ACLU had standing to bring its constitutional challenge even though no statutory cause of action allowed the ACLU to challenge the telephony metadata program as beyond statutory authorization. According to the court, the government's argument that the ACLU had no privacy interest unless someone at NSA actually looked at its telephony metadata went to the merits, not to standing. On the merits, however, Judge Pauley held that the telephony metadata program was lawful, disagreeing with the decision of Judge Leon, in a D.C. District case just 11 days earlier. Judge Pauley found that the U.S. Supreme Court precedent Smith v. Maryland
, 442 U.S. 735 (1979), was controlling. If the Supreme Court believed that Smith
has been overtaken by changes in technology, it was for the Court itself to overrule. Judge Pauley also emphasized the reasonableness and limited nature of the access to and use of the massive telephony metadata collection, as well as its importance in terrorism prevention.
The plaintiffs appealed, and on May 7, 2015, the U.S. Court of Appeals for the Second Circuit reversed the district court's decision. In an opinion by Judge Gerard Lynch, the court found that Section 215 and FISA more generally do not preclude judicial review, and that the bulk telephony metadata program is not authorized by Section 215. 785 F.3d 787 (2d Cir. 2015). Because Section 215 was scheduled to sunset on June 1, however, this Court declined to enjoin the surveillance; writing that it would be "prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape."
On June 1, the authority that had been granted by Section 215 of the Patriot Act expired after the Senate declined to pass a bill that would have temporarily extended the authority without modification
. However, on June 2, President Obama signed into law the USA FREEDOM Act of 2015, Pub. L. 114-23, (2015). The legislation provided that, after a period of 180 days, the government would be permitted to collect particular call detail records (not in bulk) under 50 U.S.C. § 1861, if it met certain "additional requirements," with particularized suspicion, through targeted demands. For an initial 180-day period, however, the legislation left in place--unaltered--the prior Section 215. That same day, the government asked the FISA Court to allow it to continue (or resurrect, since it had expired the day before) the bulk call-records program for that 180 day period. See FISA BR 15-75, NS-DC-0086
in this Clearinghouse. The government argued that Congress's decision to delay by 180 days the imposition of the new requirements relating to the collection of call records constituted an implicit endorsement of bulk collection during that period and reflected a legislative intent to "allow for the orderly termination" of that collection. The government argued, before the FISC, against the Second Circuit's conclusion that the bulk records program was unlawful. On June 29, 2014, a FISC judge agreed and granted the June 2 application.
On July 14, 2014, the plaintiffs returned to the Second Circuit and renewed their request for injunctive relief. They sought a preliminary injunction to (1) bar the government, during the pendency of this suit, from collecting plaintiffs' call records under the NSA's call-records program; (2) require the government, during the pendency of this suit, to quarantine all of plaintiffs' call records already collected under the program; and (3) prohibit the government, during the pendency of this suit, from querying metadata obtained through the program using any phone number or other identifier associated with them. The plaintiffs also asked that the Second Circuit, after the entry of preliminary relief, remand the case to the district court to adjudicate the plaintiffs' request for a permanent injunction requiring the government to end the program and purge records collected under it.
On October 29, 2015, the Second Circuit denied the plaintiffs' motion for preliminary injunction. The Second Circuit held that Congress intended to authorize the continuation of the bulk telephone metadata collection program for the 180 days before the requirements under 50 U.S.C. § 1861 took effect. As such, the Second Circuit declined to grant the plaintiffs' preliminary injunction, and also declined to rule on any constitutional issues. The case was remanded to the District Court for further proceedings.
This case is currently ongoing in the U.S. District Court.Michael Mirdamadi - 10/11/2013
John He - 11/04/2015