The Second Circuit Attempts to Reassert Its Non-Definition of Relevant

Orin Kerr and Steve Vladeck got in a bit of a squabble last week over the Second Circuit’s decision not to reach the constitutionality of the phone dragnet. Vladeck called it wrong-headed, because even if the constitutional injury of the dragnet is temporary (that is, only until November 29), it’s the kind of injury that can recur. Kerr reads both this — and the Second Circuit’s original opinion — to be nothing more than a pragmatic nudge to Congress. “If you liked that opinion, it’s a little hard to object to the Second Circuit’s pragmatic, politically savvy, we-got-Congress-to-act-on-this-so-we’re-done moves in the second opinion.”

But I think both are misreading what the Second Circuit tried to do with this.

Take Kerr’s suggestion that the initial ruling from the Second Circuit got Congress to act.  He doesn’t say what he means by that (or which civil libertarians he had in mind when asserting that). The earlier decision certainly added pressure to get the bill through Congress.

But look at how Gerard Lynch, in his opinion, describes the relationship: Congress not just passed a bill to prohibit bulk telephone collection, but it “endorsed our understanding of the key term ‘relevance.'”

Congress passed the Freedom Act in part to prohibit bulk telephone metadata collection, and in doing so endorsed our understanding of the key term “relevance.”  See H.R. Rep. No. 114‐109, at 19.

Lynch goes on to cite the House report on the bill to support this claim.

Section 103 of the Freedom Act, titled “Prohibition on Bulk Collection of Tangible Things,” states that “[n]o order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term” that meets certain requirements.  Id.  The purpose of § 103 is to “make[] clear that the government may not engage in indiscriminate bulk collection of any tangible thing or any type of record.”  H.R. Rep. No. 114‐109, pt. 1, at 18 (2015).  Section 103 is also intended to “restore meaningful limits to the ‘relevance’ requirement of Section 501, consistent with the opinion of the U.S. Court of Appeals for the Second Circuit in ACLU v. Clapper.”  Id. at 19.

He cites language point to an entire section that the House says will restore limits to the relevance requirement of a section of a law “consistent” with his own earlier opinion.

All that said, it’s not clear that USA F-ReDux, as written, does do that. That’s true, first of all, because while the House report specifically states, “Congress’ decision to leave in place the ‘relevance’ standard for Section 501 orders should not be construed as Congress’ intent to ratify the FISA Court’s interpretation of that term” (Lynch cites this language in his opinion), it also doesn’t state that Congress intended to override that definition. What the bill did instead was leave the word “relevant” (still potentially meaning “all” as FISC defined it) in place, but place additional limits for its application under FISA.

Moreover, I’m not convinced the limits as written in USA F-ReDux accomplish all that the Second Circuit’s earlier opinion envisioned, which is perhaps best described in the ways the dragnets didn’t resemble warrants or subpoenas.

Moreover, the distinction is not merely one of quantity – however vast the quantitative difference – but also of quality.  Search warrants and document subpoenas typically seek the records of a particular individual or corporation under investigation, and cover particular time periods when the events under investigation occurred.  The orders at issue here contain no such limits.  The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future.  The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created.

Even setting aside my concern that USA F-ReDux only explicitly prohibits the use of communications company names like Verizon and AT&T as a specific selection term — thus leaving open the possibility FISC will continue to let the government use financial company names as specific selection terms — USA F-ReDux certainly envisions the government imposing “a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis.” It also permits the collection of records that “are not those of suspects under investigation.”

In other words, Lynch used this second opinion to do more than say the Second Circuit was “done with it.” He used it to interpret USA F-ReDux — and the word “relevant” generally, outside of FISA, and to do so in ways that go beyond the clear language of the bill.

Vladeck is wrong when he suggested the Second Circuit would assess “whether and to what extent the Fourth Amendment applies to information we voluntarily provide to third parties” — that is, the Third Party Doctrine generally. The Second Circuit made it quite clear throughout that they were interested in the application of “relevant,” not whether the Third Party Doctrine still applied generally, which is probably why Lynch isn’t that worried about the injury recurring.

And I think Lynch used this opinion — one the government can’t really appeal — to suggest the application of USA F-ReDux is broader than it necessarily is, and to suggest the narrowing of “relevant to” is more general than it would be under USA F-ReDux (which applies just to certain sections of FISA, but not to the definition of “relevant” generally).

It’s not clear how useful the opinion will be in restricting other over-broad uses of the word “relevant” (especially given DEA claims it has eliminated its dragnet). But I do suspect, having interpreted the law as having narrowed the meaning of the law, Lynch felt like he had limited the egregious constitutional injury.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

5 replies
  1. orionATL says:

    the courts are terrified of the congress and the executive.

    the congress is terrified of the executive.

    the executive ain’t afraid of nobody and don’t answer to nobody.

    this is not the checks-and balances way our tripartite govetnment was supposed to operate.

  2. bloopie2 says:

    This close analysis is wonderful. It causes me to wonder if, a generation from now, there will be anyone left to take up the mantle. Witness this lede from an article on USA Today, today:
    .
    The case of a home-schooling family accused of not teaching its children anything while waiting “to be raptured” reached Texas’ Supreme Court on Monday, a potentially landmark showdown between religious liberty and the state’s ability to ensure youngsters actually learn something.
    ,
    Oy vey.

    • P J Evans says:

      That case is made even worse because so many states have no enforcement of whatever rules they have for checking on home-schooled kids to see if they’re learning anything.

    • orionATL says:

      i have to say i am very sympathetic to parents raising their children as they wish , not as society thinks proper.

      my sons went to public schools from public montessori pre-school thru publuc colleges. they got a great education all along the way, and they always took it from there. other parents do not have to copy us mainstream types. their children can also take if from “there”.

      i understand that some parents want to home-school their children. i also understand that the state’s (political philosophy term) bureaucracies are merciless in attacking those who can do them no political harm. this certainly includes home-schooling parents. just to widen the discussion, it also includes, in this country, black citizens being routinely executed by white police.

      in our neighborhood, a couple home-schooled a pair of especially bright boys. we gave them an organ one time which my wife had given up on because it needed repair. the kids took it, had fun with it, figured out how to repair the damned thing, and played it.

      we also now have in our neighborhood two young cousins in a timmson family bind that no policing official will, nor probably could competently, intervene in.

      the first rule of state intervention in any family with respect to its children should be to not disrupt the fundamental emotional ties with family. if, in this case, the kids are less well educated, they and the parents must work things out in adulthood.

      overt physical or mental abuse is not an issue in this discussion.

      for every general category of unusual parental education beliefs, there are going to be “rapture” cases. and christian science/jehovah’s witness “no transfusion” cases. and no vacine cases.

      i think we have to come to understand in this society that the state prosecuting, or politically pillorying, oddball cases in a numerically large type, is a recipe for destroying larger scale eccentric choice.

      yes, the children will probably be disadvantaged.

      but what of the exceptionally bright hispanic immigrant who is also severely disadvantaged by mimimal or no education? yet who survives here and thrives and takes pride in his or her children’s accomplishments in school.

      neither we, nor the state we (mostly foolishly i have come to believe) authorize to act on our behalf, have any real crystal ball that can predict the multigenerational consequences of our policing intervention.

      • bloopie2 says:

        All good thoughts, yes. State intervention must be minimized, I agree. But we do live in a community, not alone (at least, most of us do). And if we want the benefits of that community, sometimes that involves subjugating individual desires. If parents want their children to be able to draw from the community when the children are older, then (I believe) the parents are obligated to, at the least, provide the children with minimal functionality – which today means quite a bit more than “nothing”, since computers and robots can handle much of the menial labor. Our community does not say “You have to work for a living”, but it does say “If you choose not to work for a living, we might not be able to support you, and you might starve.” American communities as a whole, I believe, are more than willing to help individuals in need – but much more so if those individuals put forth at least a little effort. As to education specifically, certainly young children are not mature enough to be able to knowingly and voluntarily choose not to be educated, and so we say that their parents have to take the responsibility for that. Should a voluntarily uneducated child be allowed to benefit from all that the community has to offer? It’s a difficult subject, I grant, and this particular case is likely an outlier, and much more can be said on the topic. In sum, I think that the community has said “These are our basic rules” and has formed the State to enforce those rules to help maintain the viability of the community. In this case, home schooling is fine – as long as it does involve actual schooling.
        .
        Ah well, early morning rambling. Good discussion, thank you.

Comments are closed.