Bulk Collection of Metadata: Constitutional but Beyond Statutory Authority?

February 12, 2014 Updated: April 24, 2016

Of the Edward Snowden leaks, the majority of Americans are concerned about the scope in which the United States government is collecting information regarding their phone records.  The government has maintained collecting swaths of metadata allows them to paint a better picture in the grand scheme of counterterrorism.  However, many legal and civil liberties advocates disagree, asserting these programs violate the Fourth Amendment of the Constitution – one’s right to privacy and protection against illegal searches and seizures.

The question of continued oversight and legality of this program was examined Wednesday in a Senate Judiciary Committee hearing featuring the five authors of a recent Privacy and Civil Liberties Oversight Board (PCLOB) report called “Report on the Telephone Records Program Conducted Under Section 215 of the USA Patriot Act and on the Operations of the Foreign Intelligence Surveillance Court.”  The PCLOB is an independent review board within the executive branch.  It was created out of the 9/11 Commission and its purpose is to weigh the privacy vs. security concerns safeguarding the United States from terrorism attacks but not at the sacrifice of the Constitution.

The PCLOB report provided various recommendations to curtail the metadata collection program and analyzed its legality.  As Senator Richard Blumenthal (D-CT) said in his opening statement at Wednesday’s hearing, the legal justification for this program was not performed by the government, which, in his opinion, is worse than secrecy.  Senator Blumenthal lamented millions of law abiding Americans’ phone records have been surveilled without a written legal justification from the judges who authorized them, a concern of many Americans.

The panel of witnesses were unanimous when it came to the legality of the bulk collection of metadata – that the program is illegal.  However, their justification is worth diving into.  Senator Blumenthal asked the Chair of the PCLOB, David Medine if the program was illegal to which Medine replied, “Yes.  It is not consistent with Section 215 of the USA Patriot Act.”  This was the consensus of the panel that statutorily, the practice of the bulk collection program goes beyond Section 215.

Two members of the panel, Rachel Brand and Elisabeth Collins Cook did not fully agree with all the recommendations their group proposed in its report.  Brand stated in her testimony that the program is just numbers.  It is simply an exercise of connecting numbers to numbers, which she believes properly balances liberty and security.  Furthermore, she asserted that in the long term, the program can be effective in preventing terrorist attacks and determine if there is a domestic threat, contrary to the report, which did not believe the program was sufficiently effective.  Ms. Cook agreed with Ms. Brand regarding the numbers issue but also asserted the program does not violate the Constitution’s Forth Amendment.  As she put it, “Smith v. Maryland is law of the land,” referring to a Supreme Court decision in the late 1970’s validating police surveillance.  Smith has been the baseline for the metadata program being cited in two conflicting federal district court rulings regarding the metadata collection program.

Senator Orrin Hatch, (R-UT) asked if the two women believed the program was illegal to which they replied “No.”  Rather, they believe the program is Constitutional but the board is questioning the program’s statutory authority under Section 215.  Senator Blumenthal seemed alarmed at the assertion that the program goes beyond its statutory authority asking if Congress would have to amend the statute in order to continue the program hinting that Congress is also acting out of line allowing the program to continue.  Mr. Medine stated that Congress would have to amend the statute but the program still raises questions of Constitutionality.

The underlying question in this discussion is ultimately, what the Supreme Court is going to do.  Many have questioned whether the president can receive a preliminary ruling from the Supreme Court as to the Constitutionality of these highly scrutinized programs.  There are currently two conflicting district court rulings – one striking down the metadata program as violating the Fourth Amendment, and the other upholding it.  This issue will be decided by the Supreme Court simply due to this inconsistency provided the decisions remain the same at the appeals level (the plaintiff in Klayman v. Obama, the case where a federal district court judge placed an injunction against the government from collecting the records of the plaintiff but also stayed his ruling pending appeal, petitioned the Supreme Court to skip the appellate court and hear his case, which is highly unlikely) but there is much debate about how the Supreme Court will rule.

As previously stated, Ms. Cook asserted that Smith v. Maryland is “law of the land.”  However, Mr. Medine stated the board had not looked into a potential ruling from the Supreme Court.  In a booming lamentation, witness and board member James X. Dempsey opined his feelings regarding a Supreme Court ruling.  In his testimony he mentioned how he believed the metadata program would be legal given judicial authorization (FISA court judicial authorization), but after diligently probing into the program, he discovered the metadata program was “shoehorned into the statute [Section 215].”  He went on to say that there is no relevant case law available to apply to a program of this scope and magnitude – Smith v Maryland simply does not apply.  The first relevant case laws are the two federal district court decisions.

As the debate continues about the legality of these government surveillance programs and whether they strike an appropriate balance between liberty and security, it is important to remember why certain programs or statutes were enacted.  It is the unanimous opinion of the authors of the PCLOB report that the metadata collection program exceeds statutory authority.  Satisfying Constitutional requirements is not always enough.  The legal justification by the government for the metadata collection is that the program lies within the scope of Section 215 meaning it should follow the legal constraints of the statute.  While the program may be Constitutional, it is up to the courts (yes, even the secretive FISA courts) not to undermine the legal system in which Congress makes laws and the President executes them.  If the metadata program was never meant to be included in Section 215 then that section should either be amended to include it, or discontinued.