Future Unclear for NSA’s Bulk Telephone Metadata Collection Program

May 29, 2015

Fast approaching is the June 1 expiration of certain provisions of the Patriot Act, including § 215, (codified as 50 U.S.C § 1861), which is the basis for the National Security Agency’s (NSA’s) bulk telephone metadata collection program. The future of the program is unclear in light of ACLU, et al. v. Clapper, et al., a recent Second Circuit decision that struck down the program as illegal under § 215, and the continued turmoil in Congress regarding efforts to reform or renew the Patriot Act.

In ACLU v. Clapper, the Second Circuit overturned the district court’s dismissal of ACLU’s complaint, ruling that the NSA’s telephone metadata program was illegal under § 215. The program first came to light in 2013 after former government contractor Edward Snowden leaked documents exposing its details to a British newspaper. The NSA has since admitted that the program has been in place since at least May 2006. Under the program, numerous Foreign Intelligence Surveillance Court (FISC) orders were issued to various telephone companies ordering the production of all “call-detail records” or “telephony metadata” on an “ongoing daily basis.” Clapper at **13-15. NSA compiled the data into a database that was accessed and searched when a “reasonable, articulable suspicion” arose that a telephone number was associated with a foreign terrorist organization. Id.

The court found that the telephone metadata program was too broad in that it “requires that the phone companies turn over records on an ‘ongoing daily basis’ – with no foreseeable end point, no requirement of relevance to any particular set of facts, and no limitations as to subject matter or individuals covered.” Id. at **63-64. The court further held that the telephone metadata program ignored a requirement in § 215 that the collection be tied to an authorized investigation, since it compiles such 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.” Id. at *72. The court further noted, in rejecting the government’s attempt to expand the meaning of “relevancy” in § 215 that “[s]uch a monumental shift in our approach to combating terrorism requires a clearer signal from Congress than a recycling of oft-used language long held in similar contexts to mean something far narrower.” Id. at 75. The court declined to address the constitutionality of § 215 and was careful to avoid opining on the constitutionality of any potential alternative versions of the program that could be crafted by Congress.

In the meantime, Congress is battling over Patriot Act reform measures. The House passed the USA Freedom Act two weeks ago, a popular bill supported by the White House that would end the NSA’s bulk data collection program as we know it. (As the Clapper court noted, the USA Freedom Act’s version of § 215 would place bulk metadata collection in the hands of the telecommunications providers, to be accessed by the government only with FISC authorization. See Clapper at *22.) The Senate remains deeply divided on how it will proceed in light of the looming June 1 deadline. The Senate voted down the bill Friday evening but plans to reconsider the measure on May 31 when it reconvenes from its Memorial Day recess. Alternatively, a faction of the GOP led by Senate Majority Leader Mitch McConnell is still pushing for an extension of the Patriot Act in its current form. (Read more on the Senate’s efforts here.) Any efforts to extend the present version of § 215, however, face filibuster threats on both sides of the aisle. On early Saturday morning, the Senate voted down an attempt to reauthorize the Patriot Act in its current form for an additional two months. While it did not reach a vote, talks of even a two-day extension also met strong resistance. In the meantime, the Obama administration reportedly has already started to wind down the § 215 program in anticipation of the deadline. Given the looming June 1 deadline, the fate of this legislation and the NSA’s telephone metadata program remain in limbo.