Litigating Bulk Surveillance

Professor Matthew Waxman Moderates Discussion with Civil Rights Attorney Alex Abdo on the ACLU's Fight to Stop the Federal Surveillance Program Collecting Bulk Phone Records

New York, November 23, 2015—The story behind a lawsuit that helped bring down the U.S. government’s controversial mass tracking of phone records was chronicled in a Nov. 5 discussion at Columbia Law School.

Alex Abdo chronicled the ACLU's successful fight to stop the federal government's controversial bulk collection of
phone records.

In the wide-ranging conversation, American Civil Liberties Union attorney Alex Abdo related details from his organization’s two-year fight against the surreptitious surveillance program to Matthew C. Waxman, the Law School’s Liviu Librescu Professor of Law and chair of the Roger Hertog Program on Law and National Security. Before joining Columbia Law School, Waxman had worked for the last Bush administration in the U.S. State Department, the Defense Department and the National Security Council. 

The lawsuit—ACLU v. James R. Clapper, the director of National Intelligence—was filed in June 2013, just six days after Edward Snowden first leaked documents about domestic spying programs run by the National Security Agency. The first document was a secret order from the Foreign Intelligence Surveillance Court (FISC) to Verizon Business Network Services, requiring the company to turn over all records of phone calls within the U.S. or between the U.S. and abroad on “an ongoing daily basis,” including when, where, and to whom calls were placed. A Verizon customer, the ACLU challenged the legality of the NSA's tracking of phone data.
Post-9/11 Civil Rights Issues
The government believed it had the authority to create a large database of call records, under Section 215 of the USA PATRIOT Act. Passed just weeks after 9/11, the legislation supported surveillance and counterterrorism activities, and it amended the business records provision, or Section 215, of FISA, the Foreign Intelligence Surveillance Act of 1978, which allowed the government to issue court-authorized subpoenas demanding the production of certain records.
“At the time we had concerns about expanding the business records provision in Section 215, but we weren't sure of how concerned to be or what exactly to be concerned about because we didn't know how the government was going to use it,” Abdo recalled. “For many years, they said they didn’t use it. At hearings where these issues were debated, the government actually said they hadn't used Section 215 of the PATRIOT Act.”
But the government used the expanded Section 215 to make its case before FISC, a secretive court created to oversee government requests for surveillance warrants against foreign spies and agents in the U.S. The government was collecting massive amounts of call data with no specific target, so “they would store the information in a database and query it whenever they had, in their own estimation, a reasonable basis to believe that a phone number was associated with a terrorist group,” Abdo said. “They would get the call records of that target, plus the call records of people two and three hops out from the target. Our concern was that the government was engaging in indiscriminate, suspicionless surveillance, and that seemed as close as we'd ever come, in our nation's history, to the general warrants [used by the British to seize and search property in colonial America] which animated the ratification of the Fourth Amendment.”
Constitutional and Statutory Claims
In December 2013, a federal judge granted the government's motion to dismiss. The ACLU appealed. “We had both constitutional and statutory arguments,” noted Abdo.
“We argued that the call-records program is unconstitutional under the Fourth Amendment because the NSA’s aggregation of metadata constitutes an invasion of privacy and an unreasonable search,” he said. “We're also worried about the prospect for abuse of this information. The history of surveillance authority in this country is a history of mission creep. Even if programs set up today are bound in a really carefully circumscribed way, there will inevitably be abuses where limitations are ignored and the data are used in a way that was not authorized.
“Another form of abuse is a longer-term one,” Abdo said, when Waxman pushed him to explain the privacy harms and other dangers. “I am not confident that limitations placed on this sort of data would ever withstand the next terrorist attack. And it's one of the reasons why I think it's really important to draw strict limits at the stage of acquisition. The next time there's a serious threat or attack on the United States, all of those limitations will be thrown out the door, the same way they were after 9/11. It will happen whether or not there's a proven benefit in using the data in that way, and it will be done with long-lasting consequences. We're still recovering from the emergency mentality of 9/11.”
The appellate court chose not to address the constitutional claims, but the statutory argument won the day. “We said the call-records program violates the statute that supposedly authorized it,” Abdo said. Section 215 allowed the government to obtain secret court orders from the FISC compelling third parties to produce “tangible things” that are “relevant” to terrorism investigations. “We argued that the executive branch’s use of Section 215 goes far beyond what the statute permits. Whatever Section 215’s ‘relevance’ requirement might have allowed, it did not permit the government to cast a seven-year dragnet sweeping up every phone call made or received by Americans. The courts have recognized there's a difference between targeted surveillance and dragnet surveillance.”
In May 2015, the Second Circuit Court of Appeals ruled in favor of the ACLU, finding the NSA’s “telephone metadata program” exceeded “the scope of what Congress [had] authorized” in Section 215 of the PATRIOT Act.
On June 2, with the expiration of that section of the PATRIOT Act, the U.S. Congress passed a new law amending it to prohibit the bulk collection of Americans’ call records. But while bulk collection had been outlawed, the Second Circuit allowed the program to continue until Nov. 28. Abdo is concerned about the “lurking question” of what the government can do with the records it has already collected.
Happy “Accident” at the ACLU
Towards the end of the event, which was organized by the National Security Law Society student group, Waxman asked Adbo to tell Columbia Law School students about his own beginnings as a lawyer. How did he come to be litigating such a high-profile case, just seven years out of law school, on one of the biggest recent public policy controversies?
“By accident,” Abdo answered. He had earned a biology degree from Yale before going to Harvard for his J.D. “I interned my two summers at the ACLU, where I worked with some of the people I still work with today on post-9/11 civil-rights issues,” he said. “At that time, it wasn't as much about surveillance, because we didn't know all that much. This was still before The New York Times [2005] story about [the Bush administration’s] warrantless wiretapping.
“I clerked for judges over a couple of years, and then I made it back to the ACLU. You sort of feel like you win the lottery when you get a position there, and I stuck around long enough to work on a set of issues. I don't have a formal tech background, but I always really enjoyed thinking about and learning about technology, programming and things like that, so it's been a natural fit.”
As for advice, Abdo suggested students might take a computer programming class to better understand the technological issues of surveillance litigation. But more importantly, he said, “Learn how to write.”