ACLU Moves to Enjoin NSA Bulk Collection of Phone Data; Government Moves to Dismiss

The ACLU this evening moved to enjoin the NSA’s bulk collection of telephone metadata and, a few hours later, the government moved to dismiss the complaint entirely. The ACLU’s brief argues that the bulk collection of information goes beyond Section 215 of the Patriot Act, which is limited to information “relevant” to international terrorism investigations:

The core problem with the government’s approach to “relevance” is that the government cannot possibly tie the bulk collection of Americans’ call records to a specific investigation, as the statute requires. Indeed, the government has conceded that few of the records collected under the mass call-tracking program have any connection to any investigation.  Most of the records swept up by the program—in fact, almost all of them—are what would ordinarily be called “irrelevant.” Thus, the program guts the concept of relevance of its usual meaning—indeed, of any meaning. Section 215 requires the government to distinguish relevant records from irrelevant ones, but the program relies on collapsing the two categories. It renders the concept of irrelevance irrelevant.

The government’s brief, in addition to arguing that the plaintiffs’ lacked standing and that Congress impliedly precluded judicial review, argued for a more flexible concept of relevance:

[I]n light of Congress’s broad understanding of “relevance” under Section 215 as it necessarily applies to national security investigations, and Congress’s repeated, informed decisions to reauthorize the statute without change, the telephony metadata collection clearly meets the Section 215 “relevance” standard . . . . Collecting these data is necessary to the effective use of NSA analytical tools, which, when applied to the data, produce information that can help identify clandestine terrorist operatives or networks within the United States. That process is not feasible without bulk collection of the data, because NSA analysts cannot know in advance which of the many phone numbers obtained might have connections to known or suspected terrorists. And unless the telephony metadata are aggregated and retained for appropriate periods, it may not be feasible to identify chains of communications that cross different time periods and telecommunications networks. Thus, the telephony metadata records are “relevant” to authorized investigations of international terrorism.

The case is before Judge Pauley.