老澳门开奖结果

This was originally posted on .

Many others have already weighed in about the significance of last week鈥檚 ruling in 老澳门开奖结果 v. Clapper. Here are my own quick thoughts. As regular readers of this blog already know, I鈥檓 counsel to the plaintiffs in the litigation.

1. The ruling is a major victory for the many advocates from across the political spectrum, outside the government and inside, who have been arguing that some of the government鈥檚 surveillance activities are overbroad and unlawful and that the system of oversight that Congress established in 1978 颈蝉苍鈥檛 working. The FISA court signed off on the call records program dozens of times after hearing argument only from the government. Now the first appeals court to have considered the issue after adversarial presentation has concluded, in an opinion that no one could characterize as anything other than meticulous and comprehensive, that the program is illegal. The Second Circuit鈥檚 opinion is respectful towards the FISA court and the congressional intelligence committees, but there is no doubt that the opinion is an indictment of the oversight system.
2. The ruling means that even if Congress reauthorizes Section 215 by June 1, the government will have to discontinue bulk collection under that provision unless Congress adds language expressly authorizing bulk collection or the government prevails on the Supreme Court to vacate the ruling. That the Second Circuit declined to enjoin the call records program is immaterial. If Congress reauthorizes Section 215 in its current form, the district court will likely issue an injunction. Even without an injunction, telecommunications providers may begin to resist compliance with production demands.
3. The ruling means that the government will have to reconsider other bulk collection programs that are operated under other authorities but predicated on the same now-discredited theory of 鈥渞elevance.鈥� We know the DEA had a bulk call records program until 2013. We know the NSA was collecting Internet metadata in bulk until 2011. In what contexts the government is engaging in bulk collection now is not entirely clear, but news reports indicate that there are that haven鈥檛 yet been officially acknowledged. If the government is operating other bulk collection programs 鈥� or even 鈥渂ulky鈥� collection programs 鈥� it will now have to reconsider them. Even if it doesn鈥檛 reconsider them of its own accord, private entities whose assistance the government needs (telecommunications companies, financial companies, technology companies) may resist demands that they might not have resisted before last week. I suspect that general counsels of corporations that hold large volumes of third-party records will read the Second Circuit鈥檚 decision especially closely.
4. The ruling will change the dynamics on the Hill 鈥� and to some extent it . The Senate majority leader was already struggling to marshal support for a straight reauthorization of Section 215. Now his task is harder, first, because the Second Circuit鈥檚 ruling makes it even clearer that the Patriot Act鈥檚 surveillance provisions are being abused; and, second, because, again, even a straight reauthorization won鈥檛 enable the government to continue bulk collection under Section 215 unless the Supreme Court vacates the Second Circuit鈥檚 decision. The flipside is that the leverage of the USA Freedom Act鈥檚 supporters has increased, and they may be able to use that leverage to strengthen the Act 鈥� for example, to tighten the restriction against bulk collection under Section 215, to impose stronger minimization requirements, to require greater transparency about the government鈥檚 surveillance activities, and to prohibit 鈥渂ackdoor鈥� searches under the FISA Amendments Act. If the USA Freedom Act 颈蝉苍鈥檛 strengthened, some who previously supported it may ask whether it accomplishes significantly more than what the Second Circuit has already accomplished, and they may begin to wonder why Section 215 shouldn鈥檛 simply be . On the other hand, if the reform bill is significantly strengthened, it may attract support from organizations and individuals that haven鈥檛 until now been willing to support it. (Currently, the 老澳门开奖结果 is neither supporting the bill nor opposing it.)

It will be easier to say in three years, or perhaps even three months, precisely how significant the Second Circuit鈥檚 decision was. But the decision has already shaken things up, and it could change the government鈥檚 surveillance practices quite dramatically. I that the Snowden disclosures should spark reform, and I that they would. It鈥檚 too early to know whether I was right, but I鈥檓 more optimistic today than I was a week ago.