NEWS ANALYSIS: A federal court opinion that the National Security Agency collection of phone metadata wasn’t authorized by law isn’t the decisive victory for civil liberty many observers claim it is.
Civil libertarians have been celebrating the decision by the U.S. Second Circuit Court of Appeals that found that the National Security Agency was wrong in its assertion that Section 215 of the Patriot Act authorized its mass collection of telephone metadata.
People who hold that view might want to take a step back and give the situation another look, because the court gave them no immediate relief of any kind. In fact, all the decision did was to send the case back to a lower federal court with instructions to try again.
There are several things the Circuit Court could have done that it chose not to do. While the three-judge panel was unanimous in deciding that Congress had never intended for the NSA and other agencies to conduct those mass data sweeps, it chose not to do anything to stop them.
Part of the reason the judges decided not to take any further action such as imposing an injunction against the data collection is because the law is set to expire three weeks after the decision anyway.
In addition, Congress is in the midst of considering a replacement for that part of the Patriot Act, called the USA Freedom Act, which would make significant changes to the whole program, including a requirement to have warrants before any search of U.S. citizens’ metadata.
The court could also have decided that the metadata collection program was unconstitutional, but it didn’t do that either. There are other actions against the use of the metadata already working their way through the federal courts, so such a decision is possible there, but it’s by no means a sure thing. In any case, a decision about the constitutionality of data collection won’t happen right now. All that happened to this point was the remand back to a lower court.
In this light it seems that despite the headlines, the decision by the Second Circuit Court didn’t really do anything, but that’s not true either. The primary reason that the Second Circuit Court didn’t find on constitutionality of the NSA surveillance program is that such a decision wasn’t necessary for the court to do its job.
Instead, the court was able to accomplish what was needed by deciding that Congress hadn’t given the government the authority to gather metadata under the law and then to send it back to the lower courts for further action.
According to Courtney Sullivan, an attorney with Venable LLP in Washington, the NSA’s gathering of metadata can continue, at least until Section 215 expires on June 1. Sullivan is a former U.S. Department of Justice attorney who actively prosecuted terrorists and managed to get one of the Guantanamo detainees to plead guilty.