Telephone Surveillance Hang-Ups: 2nd Circuit Asks Parties in ACLU v. Clapper to Brief Whether the USA Freedom Act Moots Plaintiff’s Claims

Not long after striking down the National Security Agency’s telephone surveillance program in ACLU v. Clapper, the 2nd Circuit is asking the parties to assess whether recently passed federal legislation has rendered the plaintiff’s claims moot.

On May 7 the 2nd Circuit Court of Appeals ruled that the NSA’s bulk telephone metadata collection program was not authorized under Section 215 of the USA PATRIOT Act, but declined to issue an injunction as Congress was debating whether to reauthorize the program prior to its expiration on June 1. Following the lapse of Section 215’s effectiveness by the terms of that Act’s sunset provision, Congress passed the USA Freedom Act (H.R. 2048) on June 2 and President Obama signed it that evening. Among its provisions, the USA Freedom Act amended Section 215 to temporarily reauthorize the surveillance program for a 180-day period and then prohibit future large-scale bulk collection of call detail records after November 29.

Given the significant changes to Section 215, the 2nd Circuit issued an order on June 9 directing both sides in ACLU v. Clapper to brief whether the USA Freedom Act’s prohibitions on future collection of telephone metadata moots any of the plaintiff’s claims. The 2nd Circuit has given the parties until July 24 to submit their briefs responding to the court’s concerns, and has stayed the mandate of its opinion pending the parties’ supplemental briefing.

Meanwhile, the Foreign Intelligence Surveillance Court issued an order on June 29 that the government may resume bulk collection of telephone metadata during the 180-day reauthorization period. Hopefully, the 2nd Circuit’s assessment of whether the USA Freedom Act moots the claims will come before the end of telephone surveillance program’s temporary reauthorization period on November 29.

Please follow Davis Wright Tremaine’s Privacy and Security Law Blog for further analysis and developments in ACLU v. Clapper.