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The (Telephony) Matrix Reloaded

June 9, 2015 in Economics

By Julian Sanchez

Julian Sanchez

The Obama administration has sought to temporarily relaunch the NSA’s bulk telephone records collection program, which was wound down over recent weeks as its legal foundation, §215 of the Patriot Act, briefly lapsed during the debate over the USA Freedom Act. But may it legally do so? Former Virginia Attorney General (and perennial conservative gadfly) Ken Cuccinelli is teaming with the advocacy group FreedomWorks to challenge the rebooted telephony dragnet.

The Fourth Amendment arguments against the program remain largely unchanged, and so whatever you thought about the constitutionality of indiscriminate collection of domestic telephone records before the passage of the USA Freedom Act, you can probably hang on to your opinion. The statutory argument, however, is rather more complicated. The Second Circuit held prior to the passage of the Freedom Act that in fact the NSA program was never properly authorized by §215. While the Second Circuit’s holdings don’t bind the Foreign Intelligence Surveillance Court, one would at the least expect the FISC to be somewhat circumspect about brushing aside a federal appeals court ruling, and the plaintiffs in that case might well be expected to seek an injunction from the Second Circuit if the FISC should issue another bulk §215 order.

On the assumption that the pre-sunset version of the §215 authority has now been restored (which is fairly clearly what Congress intended, though there is some technical dispute as to whether it successfully did so) without further alteration for the next six months, the Second Circuit ruling would at first blush still seem to apply. Congress did not, after all, modify the “relevance” standard that the court found could not fairly be construed to authorize indiscriminate collection. So there’s a pretty straightforward textual argument that if the telephone records of all Americans could not reasonably be deemed “relevant to an authorized investigation” in May, we should not suppose that they have become relevant to an authorized investigation in June.  Moreover, the House Judiciary report on the bill explicitly disavows any intent to “ratify” the FISC interpretation of “relevance,” and approvingly cites the Second Circuit ruling, which taken in isolation might seem like a pretty clear indication that the authority cannot be used to resume bulk collection under that same language.

The Obama administration has sought to temporarily relaunch the NSA’s bulk telephone records collection program.”

What complicates matters is that the Second Circuit devoted significant space to the question of “ratification”—of whether Congress had, in previously reauthorizing §215, given its blessing …read more

Source: OP-EDS

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