This month, we discuss American Civil Liberties Union v. Clapper,1 in which the U.S. Court of Appeals for the Second Circuit, in an opinion by Judge Gerard E. Lynch and joined by Circuit Judge Robert D. Sack and Vernon S. Broderick (Southern District of New York, sitting by designation), with Sack issuing a concurring opinion, found that the collection of telephone metadata by the National Security Agency (NSA) exceeded the authority granted to it by the Foreign Intelligence Surveillance Act (FISA),2 as amended by Section 215 of the U.S. Patriot Act.3 Specifically, the court ruled that the government’s interpretation of Section 215 was overly broad and that Section 215 did not permit the collection of telephone metadata undertaken by the NSA. The court, however, found that its finding was insufficient to merit the court granting a preliminary injunction. In so ruling, the court reversed the district court’s dismissal of the complaint and remanded the case to the district court.

Background

Congress enacted FISA in the 1970s against a backdrop of warrantless surveillance programs being conducted by the NSA, the FBI, and the CIA. These early surveillance programs were struck down by the Supreme Court in United States v. U.S. District Court for the Eastern District of Michigan (Keith).4 In response to these surveillance programs and the Supreme Court’s decision in Keith, the Senate created the Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the “church committee”), to investigate the surveillance programs and to determine whether legislation was needed. FISA resulted from these efforts.

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