It’s been a rough few weeks for legal challenges to NSA surveillance. First, a federal district court in Maryland dismissed a lawsuit brought by the ACLU challenging the NSA’s Upstream surveillance of the Internet backbone. Then, the Second Circuit Court of Appeals refused to grant the ACLU a preliminary injunction against the NSA’s bulk telephone records program, despite having previously found that the program was illegal. Essentially washing its hands of the case, the court refused to even consider the ACLU’s arguments that the phone records program is unconstitutional because the program will stop in its current form at the end of November. 

Back in May, the ACLU won a landmark victory when the Second Circuit declared the government’s interpretation of Section 215 of the Patriot Act—the law used to justify the NSA’s mass collection of Americans’ telephone records—was “unprecedented and unwarranted.” However, the court didn't rule on the constitutionality of the program and refused to grant a preliminary injunction at that time, deeming it “prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.” That debate resulted in the passage of the USA Freedom Act, which prohibits the use of Section 215 for bulk telephone records collection. The catch is that this section of USA Freedom does not go into effect until the end of this month, and in the meantime the government believes it can continue collecting telephone records in bulk. In June, the Foreign Intelligence Surveillance Court (FISC) agreed that it’s business as usual until then. 

This prompted the ACLU to renew its attempt to stop the illegal phone records program immediately. The group argued that it was not clear that Congress had intended for the program to continue and, more important, that it is unconstitutional. The Second Circuit did not reach the ACLU’s constitutional arguments in May because it ruled that the program was not authorized under Section 215, although it did note serious “constitutional concerns.” Now that the statute has been amended by USA Freedom, however, those concerns are unavoidable.

Or so it would seem. In the new ruling, the Second Circuit used the “vexing” nature of these constitutional questions as a reason to avoid deciding on a preliminary injunction:

We agree with the government that we ought not meddle with Congress’s considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief. To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless.

This is disappointing for several reasons. First, although appellate courts are notoriously slow, the ACLU’s motion for a preliminary injunction has been pending for nearly four months, and it is settled that cases presenting alleged harm to constitutional rights are among the most urgent. Second, the court’s conclusion that a constitutional analysis would be “fruitless” ignores that the government will retain the records it has already collected after the program ends, presenting an indefinite and ongoing harm. On this question, the appeals court remanded to the district court, which only delays the final adjudication of the question further. Finally, there is a value in deciding whether the collection of records is a violation of the Constitution. The old telephone records program may be ending, but the government raises the same arguments about why it is constitutional in many settings, and it’s time we had a definitive rule.

At EFF, we’ve had our own share of delay in our cases dealing with NSA surveillance. We were in court last month, arguing that our appeal in Jewel v. NSA should be go forward, and we’re still waiting for a hearing in First Unitarian v. NSA. We'll keep fighting.