Overview
In an opinion today, the Second Circuit reversed a decision by Judge Pauley (see our prior posts on the case here), and ruled that the NSA’s bulk collection of phone data is unlawful. Section 215 of the Patriot Act allows the government to collect “tangible things” that are “relevant” to an “authorized investigation” of terrorism, but the Second Circuit found that bulk collection did not meet the test of relevance:
[T]he government takes the position that the metadata collected -- vast amount of which does not contain directly “relevant” information, as the government concedes -- are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted. . . . “Relevance” does not exist in the abstract; something is “relevant” or not in relation to a particular subject. Thus, an item relevant to a grand jury investigation may not be relevant at trial. In keeping with this usage, § 215 does not permit an investigative demand for any information relevant to fighting the war on terror, or anything relevant to whatever the government might want to know. It permits demands for documents “relevant to an authorized investigation.” The government has not attempted to identify to what particular “authorized investigation” the bulk metadata of virtually all Americans’ phone calls are relevant . . . Put another way, the government effectively argues that there is only one enormous “anti‐terrorism” investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort. The government’s approach essentially reads the “authorized investigation” language out of the statute.The Second Circuit declined to block the program, however, since Section 215 is set to expire in a few weeks, and the court found it “prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.”
