Digital liberties groups across the country have both celebrated and criticized the recent passage of the USA Freedom Act. Here at EFF, we did a little bit of both. While USA Freedom will undoubtedly impact the court cases challenging the NSA’s mass surveillance, the full scope of this law and how the courts and even the government will interpret it remains unclear.
However, we do know that the government believes it can renew its daily bulk collection of telephone records during the 180-day “transition period” in which USA Freedom’s amendments to the phone records authority goes into effect. This is particularly troubling given the Second Circuit’s ruling in ACLU v. Clapper that this sort of dragnet surveillance is illegal.
NSA Cases: Smith, First Unitarian, Jewel, Klayman and Clapper
EFF along with the ACLU had the opportunity to discuss the government’s contentions in Smith v. Obama. This past December, the U.S. Court of Appeals for the Ninth Circuit heard oral argument on the Smith appeal. After the passage of USA Freedom, the Ninth Circuit quickly requested a briefing by the parties on the impact of USA Freedom on the telephone records program at issue in Smith. These briefs were submitted on Friday, June 19.
Meanwhile, the United States District Court for the Northern District of California has yet to request briefing on USA Freedom in EFF’s two other cases challenging the bulk collection of telephone records— First Unitarian v. NSA and Jewel v. NSA
First Unitarian v. NSA solely targets the NSA’s bulk collection of telephone records. In First Unitarian, EFF is pursuing First Amendment, Fourth Amendment, and statutory challenges to this program, so the passage of USA Freedom will have an impact on our claims. While the court denied EFF’s most recent request for a hearing, EFF will continue to pursue these claims to ensure that the court fully considers the issues raised by the NSA’s phone records program.
Jewel v. NSA is EFF’s longest-standing case against the NSA’s dragnet surveillance. Jewel challenges the NSA’s bulk collection of telephony metadata, the collection of Internet metadata, and Internet content surveillance. USA Freedom addresses the bulk collection of telephony metadata, but it notably neglects the collection of Internet communications under Section 702 of the FISA Amendment Act. The court ruled for the government on EFF’s Fourth Amendment challenge to the collection of Internet content (and EFF is appealing this decision in the Ninth Circuit), but the court has yet to rule on the constitutionality or permissibility of the mass surveillance of telephone records. In addition to pursuing our appeal in the Ninth Circuit, EFF will continue to push forward on our other claims in the district court.
Expect similar issues to arise in other NSA spying cases that EFF has supported as an amicus— Klayman v. Obama and ACLU v. Clapper. Currently, Klayman is under review following oral argument in the D.C. Circuit, which is considering the district court’s ruling that the bulk collection of telephone records is likely unconstitutional. Klayman recently filed a supplemental brief stressing the importance of the appeal continuing despite USA Freedom given the NSA’s “pattern of illegal and unconstitutional acts for an extended period of time.” Meanwhile, the Second Circuit’s historic ruling in Clapper not only held the bulk collection of telephone records exceeded congressional authorization, it also directly raised the possibility of Congress addressing the NSA’s reliance on Section 215 of the Patriot Act for its telephone records program. Congress has since spoken with the passage of USA Freedom, so the extent of the Second Circuit’s deference to Congress relating to the 180-day transition period will be a significant issue as it considers supplemental briefing from the parties on whether the ACLU’s claim is moot.
National Security Letters
In addition to modifying the requirements for the collection of call detail records and other tangible things, USA Freedom also amends the statutes governing national security letters (NSLs). In particular, the NSL amendments attempt to address the constitutional concerns raised in our victory in In re NSL by amending the process by which NSL recipients can challenge non-disclosure orders, but they don’t to go far enough. These amendments will certainly be relevant to our work on the appeal of In re NSL, which was argued in the Ninth Circuit in October, and as amicus in Twitter v. Holder. In fact, the court in the Twitter suit has requested additional briefing by the parties on how USA Freedom would impact the case.
While the short- and long-term implications of USA Freedom may not be as clear as we would like, there is hope. In First Unitarian, Smith, and Jewel, EFF will continue to pursue our challenges to the government’s bulk collection of telephone records as well as our other claims before these courts. The Clapper decision certainly provides a great starting point. The next step will be a decision holding bulk collection to be unconstitutional under both the First and Fourth Amendments. Until then, EFF will continue our fight to ensure an end to mass surveillance.