Today the second Circuit Court of appeals dealt a blow against government surveillance, but the Fourth Amendment protections against the telephone metadata collection program under the Patriot Act still remain unclear.[read_more]
Under § 215 of the Patriot Act the federal government is allowed to collect substantial private information about people pursuant to secretly obtained warrants. § 215 has been codified at 50 U.S.C. § 1861. The federal government has been collecting telephone metadata since at least May 2006 on all people in the United States without our knowledge. (Opinion P. 14). This metadata has been compiled in vast federal databases for use in future investigations, supposedly with adequate safeguards. In short, every phone number you have called and that has called you since May 2006 is in a vast secret government database waiting to be datamined when someone you know is identified as a potential terror threat. (Opinion p. 8). The American public found out about this in June 2013 through the leaks from Edward Snowden. (Opinion p. 13). Various suits have been filed seeking injunctive relief and damages against the U.S. government.
The warrants sought violate the statute
Under 50 U.S.C. § (b)(2)(A) the FBI must submit certain information in order to obtain the warrant such as “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation…” The important phrase in the above sentence is “relevant to an authorized investigation.” The Second Circuit concluded that the authorized investigation must be narrow and can not occur sometime after the issuance of the warrant.
The telephone metadata program, by contrast, seeks to compile data in advance of the need to conduct any inquiry (or even to examine the data), and is based on no evidence of any current connection between the data being sought and any existing inquiry. (Opinion p. 72).
We conclude that to allow the government to collect phone records only because they may become relevant to a possible authorized investigation in the future fails even the permissive “relevance” test. (Opinion p. 75).
In other words you cannot collect information that you expect will become relevant sometime in the future. The warrants violate the plain meaning of the statute.
But what about the Fourth Amendment?
After spending 10 pages discussing the constitutionality of § 215, the Second Circuit concludes by saying:
We reiterate that, just as we do not here address the constitutionality of the program as it currently exists, we do not purport to express any view on the constitutionality of any alternative version of the program. (Opinion p. 75).
I think they could have said in one paragraph, “as we find the warrants were issued in violation of the statute we do not reach any conclusions as to the constitutionality of the warrants.”
The end result
The case has been sent back to the trial court judge for further rulings. This is a victory for civil liberty, but far from the sweeping victory civil libertarians were hoping for.