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Guest Post: The PCLOB Report and the Need for Executive Branch Constitutional Enforcement

The Privacy and Civil Liberties Oversight Board has been both praised and criticized for the conclusions of its recent report on NSA bulk metadata collection: that the program is ineffective, that it violates the requirements of Section 215, and that it should end. But another important conclusion of the report has been overlooked and undervalued by critics. The PCLOB’s call to consider the First and Fourth Amendment implications of this and other programs could have a lasting influence on executive branch constitutional interpretations.

Former NSA Director Michael Hayden famously described the agency’s role as conducting intelligence operations within the legal “box” established by the President. But this framework begs the question of how and where the lines of the box are drawn. While many government agencies simply execute the laws as they are instructed, the executive branch as a whole must go through a continual process of determining how the laws should be interpreted and applied. We now know that Justice Department attorneys issued unreasonably broad interpretations of the President’s surveillance and detention powers in the wake of September 11th, and the PCLOB report makes clear that the bulk telephone metadata program is grounded on similarly dubious constitutional and statutory interpretations.

While the 215 Program has been approved by the FISC since 2006, no written opinion addressing the constitutionality of the program was issued until August 2013. And the first judge to consider the issue with adversarial briefing found that the program likely violated the Fourth Amendment. The primary authority cited by the Government in support of the program is the Supreme Court’s 1979 decision in Smith v. Maryland, upholding the use of a pen register device to monitor a suspect’s call metadata without a warrant. But the 215 Program extends far beyond what the Justices considered in the Smith case, and the use of metadata for “contact chaining” also impinges on First Amendment rights of association.

The 215 Program represents a 180-degree shift in how the Government collects data about Americans and has serious Fourth And First Amendment implications. Under the program, all call detail records are collected on an ongoing basis and stored for five years; the NSA analyzes the records later based on its internal procedures. The NSA’s bulk collection program bears no resemblance to the sort of targeted, individualized investigations that were conducted in Smith and other “third party” doctrine cases. And that difference matters for the reason Justice Sotomayor recently articulated in her concurring opinion in United States v. Jones: prolonged and ubiquitous monitoring reveals “types of information not revealed by short-term surveillance.” In fact, the NSA is interested in this bulk data precisely because it can reveal more about groups and contacts than individualized requests. But the program threatens the core interests of the Fourth and First Amendments: limiting the use of general warrants and protecting citizens’ rights of association.

In its report, the PCLOB reviewed existing First and Fourth Amendment case law, and concluded that “no court has considered” a program of the same type and scope as the telephone metadata program, involving ongoing collection of records about “essentially all individuals nationwide.” The report makes clear, as Judge Leon did in December, that the program is not clearly covered by existing constitutional precedent. Given the civil liberties impacts and the lack of precedent on point, the PCLOB recommended that the government “look beyond the application of cases decided in a very different environment and instead consider how to preserve the underlying constitutional principles.”

This recommendation is in line with the President’s duty to “take care that the Laws be faithfully executed,” which includes an affirmative obligation to uphold the Constitution. Article II requires that the President swear an oath to “preserve, protect, and defend the Constitution of the United States.” Importantly, that commitment requires continual analysis of the First and Fourth Amendment implications of government programs as technologies and methods evolve. As the PCLOB report outlined, technological advances have “markedly heightened the government’s capacity to collect, aggregate, and analyze immense quantities of information” about citizens. That technological evolution significantly alters the assumptions underlying prior Supreme Court precedents including Smith v. Maryland. Thus, the President’s duty to protect Constitutional values cannot be discharged by mechanically applying old precedents to new facts.

The PCLOB’s recommendation that the executive branch act affirmatively to preserve important First and Fourth Amendment rights is also in line with a fundamental principle of statutory interpretation, the “constitutional avoidance” canon.  The “modern avoidance” canon is used to ensure that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” This doctrine is frequently invoked by the Office of Legal Counsel as a means of executive-branch constitutional enforcement (famously in the Dellinger Memorandum).

In Constitutional Avoidance in the Executive Branch, Professor Trevor Morrison discusses the possible theoretical basis for the executive’s use of the avoidance canon. Under a “constitutional enforcement” theory, the “idea is to raise the cost” of an encroachment into a constitutionally protected area. Executive enforcement of constitutional norms is critical, as recently appointed D.C. Circuit Judge Cornelia Pillard described in The Unfulfilled Promise of the Constitution in Executive Hands, because the President and other officials have an affirmative duty to uphold the Constitution and because many constitutional interpretations are never subject to judicial review. This is especially true in the context of national security, as the Supreme Court made clear last year in Clapper v. Amnesty International.

The PCLOB’s call for caution and restraint of bulk metadata collection is clearly in line with the duty of the President and his advisors to enforce constitutional norms through their legal interpretations. The previous administration failed to do so when it drew the “box” for Director Hayden, allowing him to collect all domestic call records on an ongoing basis and maintaining that program in the face of Congress’ strict legal prohibitions on electronic surveillance. For those executive branch officials charged with conducting constitutional and statutory analysis of these programs, it was not enough to simply rely on Smith v. Maryland and the “third party doctrine” framework when the scale and nature of the data collected had fundamentally changed the paradigm. The program should not have been authorized because it runs contrary to core Fourth Amendment and First Amendment principles, and is not comparable to any existing precedent. A proper application of the avoidance canon should have construed any ambiguous FISA provisions as prohibiting such bulk collection.

We have not yet seen any of the OLC Opinions that provided the legal basis for the use of Section 215 to authorize NSA’s bulk telephone metadata program, but it is safe to say that the Justice Department was not sufficiently cautious when it authorized this incredibly broad and sweeping surveillance program. The PCLOB report has added additional weight to the constitutional challenges to the program, and made clear that the bulk collection of Americans’ call records raises significant First and Fourth Amendment issues that should have been avoided by cautious executive branch legal guidance.

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About the Author

is the Electronic Privacy Information Center (EPIC) Appellate Advocacy Counsel. Follow him on Twitter @AlanInDC.