Show sidebar

Very Summary Account of Judge Pauley’s Opinion on the 215 Telephony Metadata Program

I’ll defer to others for substantive analysis of Judge Pauley’s opinion.  To facilitate discussion, however, here is a very abbreviated roadmap of his holdings, based on an admittedly quick preliminary read of the opinion.  (I apologize in advance if I’ve neglected anything significant or misread the opinion in any way.):

  1. Judge Pauley first rejects the government’s argument that plaintiffs lack standing to bring their constitutional claim, since plaintiffs are complaining about, inter alia, the government’s collection of their metadata, which is conceded.  The fact that, according to the Government, no privacy interests are implicated by the collection as such (before the computer has searched the records) “speaks to the merits,” not standing.  (The judge returns to this argument in his discussion of the merits of the First Amendment claim–see point 8, below.)
  2. Judge Pauley rules that plaitniffs’ statutory (but not their constitutional) claims under the Administrative Procedure Act are implicitly precluded by the entire statutory scheme, including Congress’s presumption that such parties would not even be aware of the existence of a FISC ruling.  (For more on this question, see Steve’s post here.)  Judge Pauley nevertheless proceeds to address the merits of the plaintiffs’ statutory arguments–significantly, something that Judge Leon did not do . . .
  3. He first rejects the argument that the section 215 orders are statutorily barred by section 2702 of ECPA, adopting Judge Walton’s reasoning that it wouldn’t make sense for Congress to allow the USG to obtain these records through national security letters but not through the more privacy-protective means of a FISC-approved 215 order.  (For what it’s worth, I argued in the “ECPA Prohibition” section of this post that this reasoning assumes what is at issue–namely, that such bulk collection is authorized by the “relevance” standards of both section 215 and the NSL authority of section 2709–and that either the premise of the Walton (now Pauley) argument is wrong, because the government could not obtain such bulk records under section 2709, or the NSL authority raises a much more serious question than the 215 authority, because if Walton/Pauley are right, the government can obtain such records via an NSL, without FISC approval and the substantial conditions and limitations imposed by the FISC.)
  4. The Judge next concludes that in 2010/2011, Congress ratified the FISC’s earlier construction of section 215.
  5. Finally, he concludes, in any event, that the FISC construction of the statute is correct.  His analysis begins with the assumption that if records can be obtained by a grand jury or administrative subpoena, they can then be obtained under section 215 (“section 215 orders flow from the Government’s grand jury and administrative subpoena powers” he writes).  (Again, for whatever it’s worth, I argued in my previous posts that satisfying the grand jury subpoena standard is necessary but not sufficient under Section 215.)  He then reasons that these records could have been obtained by a grand jury or administrative subpoena, or at least that that would be the case if a grand jury were authorized to detect future terrorist attacks rather than to investigate past crimes.
  6. Judge Pauley holds that Smith v. Maryland controls for Fourth Amendment purposes — and stresses that the records in question here belong to Verizon, not the plaintiffs.
  7. He rejects the plaintiffs’ First Amendment claim, as well, reasoning that there’s no reasonable basis for a chill of the ACLU’s phone communications because it is highly speculative whether any government officials (as opposed to an NSA computer) will ever query, review or further investigate such communications.
  8. Before concluding, Judge Pauley stresses that he was able to consider arguments that were not available to the FISC because its proceedings are secret and nonadversarial and thus “not ideal for interpreting statutes.”  Although he ends up agreeing with the FISC on the merits, he suggests that the people’s interests “should have a voice in the FISC.”

Filed Under: ,


About the Author

is a Professor at the Georgetown University Law Center.