SECOND CIRCUIT HOLDS NSA METADATA COLLECTION ILLEGAL:    The U.S. Court of Appeals for the Second Circuit issued its opinion today in ACLU v. Clapper, a case challenging the legality of Section 215 of the Patriot Act. Section 215 allows access to “tangible things,” that are “relevant to an authorized investigation,” and has been interpreted broadly to allow the collection of so-called phone “metadata”–numbers called, time/duration of call–first widely revealed by former NSA employee Edward Snowden.

The Second Circuit’s opinion is an interpretation of the Patriot Act, not a constitutional decision, and hinges upon the court’s interpretation of the word “relevant”:

We conclude that to allow the government to collect phone records only because they may become relevant to a possible authorized investigation in the future fails even the permissive ‘relevance’ test.

The court did not issue a preliminary injunction, however, preferring instead to remand that issue to the U.S. district court.  It also noted that if Congress reauthorizes section 215– as Senate Majority Leader Mitch McConnell prefers–it would alter the statutory analysis and may cause consideration of the constitutional issues:

[T]he statutory issues on which we rest our decision could become moot (at least as far as the future of the telephone metadata program is concerned), and the constitutional issues appellants continue to press radically altered, by events that will occur in a short time frame.  If Congress decides to authorize the collection of the data desired by the government under conditions identical to those now in place, the program will continue in the future under that authorization.  There will be time then to address appellants’ constitutional issues, which may be significantly altered by the findings made, and conclusions reached, by the political branches . . . .

Congress would be wise to get rid of section 215 entirely–as the House Judiciary USA Freedom Act would do–and consider starting from scratch to craft a more thoughtful, appropriately tailored approach to actual terror investigation.  Section 215 is just too amorphous.