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As a nerdy follow-up to the stories about last night’s expiration of section 215, I thought I’d say a quick word about how that denouement will affect the ongoing litigation challenging the bulk phone records program. In a nutshell, it’s a mixed bag. Although it’s well settled by the Supreme Court that most (albeit not all) suits seeking prospective relief become moot upon the repeal or expiration of the statute being challenged (since there’s nothing left to enjoin), it’s equally axiomatic that claims for damages survive such developments. To be sure, the plaintiffs in the Second and Ninth Circuit cases challenging section 215–ACLU v. Clapper and Smith v. Obama–both sought only injunctive and/or declaratory relief. In those cases, at least, there’s a non-frivolous argument that the claims were mooted by the expiration of section 215 (although, in ACLU, the plaintiffs also sought an order requiring the government “to purge from their possession all of the call records of Plaintiffs’ communications in their possession collected pursuant to the [phone records program],” a claim that certainly isn’t mooted by 215’s expiration). And in the D.C. Circuit challenge–Klayman v. Obama–the plaintiff also sought (rather excessive) actual, compensatory, and punitive damages in his complaint, which, if nothing else, should pretermit any argument from the government that the case is now moot.

In other words, we should still expect an opinion from the D.C. Circuit on the phone records program even now that section 215 has expired. As for the Second Circuit, the plaintiffs’ purge claim is almost certainly enough to defeat a government motion to vacate the Court of Appeals’ May 7 decision. The more intriguing question is whether the government might therefore seek rehearing en banc or certiorari. Either way, the bottom line is that the expiration of section 215 is likely to have no effect on at least two of the three pending challenges to the phone records program.

A Justice Department prosecutor said Thursday that ordering the immediate end of bulk surveillance of millions of Americans’ phone records would be as hasty as suddenly letting criminals out of prison. “Public safety should be taken into consideration,” argued DOJ attorney Julia Berman, noting that in a 2011 Supreme Court ruling on prison overcrowding, the state of California was given two years to find a solution and relocate prisoners. By comparison, she suggested, the six months Congress granted to the National Security Agency to stop indiscriminately collecting data on American phone calls was minimal. Ending the bulk collection program even a few weeks before the current November 29 deadline would be an imminent risk to national security because it would create a dangerous “intelligence gap” during a period rife with fears of homegrown terrorism, she said.

The argument came during a hearing before U.S. District Court Judge Richard Leon on plaintiff Larry Klayman’s request for a preliminary injunction that would immediately halt the NSA program that tracks who in the United States is calling who, when, and for how long. The bulk telephony metadata program, which the NSA said was authorized under section 215 of the USA Patriot Act, was closed down by Congress in June with the passage of new legislation—the USA Freedom Act. However, the new bill allowed for a grace period of six months in which the government could set up a less all-inclusive alternative..

The Second Circuit Court of Appeals in May ruled that the bulk telephony program was illegal. Judge Leon ruled in Klayman’s favor in 2013, calling the government’s spying “almost Orwellian.” When Berman made her analogy to releasing prisoners en masse, Leon responded: “That’s really a very different kind of situation, don’t you think?”. And Berman was unable to cite any evidence that the bulk collection prevented any sort of terrorist attack, or that ending it now would be a serious threat. “That’s a problem I had before—wonderful high lofty expressions, general vague terms…but [the government] did not share a single example,” Leon said. Klayman, whose arguments consisted mostly of accusing the government of lying and violating the law, decided by the end of the hearing that he actually wanted the entire USA Freedom Act stricken from the books—because he insisted that Congress, in allowing an unconstitutional program to proceed, had violated the Constitution itself. Judge Leon promised a ruling “as soon as possible.”

Government Claims EFF's Lawsuits Don't Cover Ongoing Surveillance – Raising Fears Key Documents May Have Been DestroyedUPDATE: Judge White today continued his temporary restraining order in these two cases until a more permanent order could be put in place. The question of whether the government improperly destroyed evidence so far will be briefed over the next several weeks.

Government Claims EFF's Lawsuits Don't Cover Ongoing Surveillance – Raising Fears Key Documents May Have Been DestroyedUPDATE: Judge White today continued his temporary restraining order in these two cases until a more permanent order could be put in place. The question of whether the government improperly destroyed evidence so far will be briefed over the next several weeks.

San Francisco - The Electronic Frontier Foundation (EFF) will fight disturbing new government claims in an emergency court hearing Wednesday – claims that may imply records documenting ongoing government surveillance have been destroyed despite a judge's order. Over the last several weeks, EFF has been battling to ensure that evidence of the NSA surveillance program will be preserved as part of its two cases challenging the illegal government spying: Jewel v. NSA and First Unitarian Church of Los Angeles v. NSA. But in a court filing late Monday, the government made shocking new assertions, arguing that its obligation to preserve evidence was limited to aspects of the original Bush-era spying program, which the government contends ended eight years ago with a transition to FISA court orders.

Ukraine’s new Finance Minister Natalie Jaresko, a former U.S. State Department officer who was granted Ukrainian citizenship only this week, headed a U.S. government-funded investment project for Ukraine that involved substantial insider dealings, including $1 million-plus fees to a management company that she also controlled. Jaresko served as president and chief executive officer of Western NIS Enterprise Fund (WNISEF), which was created by the U.S. Agency for International Development (U.S. AID) with $150 million to spur business activity in Ukraine. She also was cofounder and managing partner of Horizon Capital which managed WNISEF’s investments at a rate of 2 to 2.5 percent of committed capital, fees exceeding $1 million in recent years, according to WNISEF’s 2012 annual report.

Based on the data from WNISEF’s 2012 annual report, it also appeared that the U.S. taxpayers had lost about one-third of their investment in WNISEF, with the fund’s balance at $98,074,030, compared to the initial U.S. government grant of $150 million. Given the collapsing Ukrainian economy since the Feb. 22 coup, the value of the fund is likely to have slipped even further. (Efforts to get more recent data from WNISEF’s and Horizon Capital’s Web sites were impossible Friday because the sites were down.) Beyond the long list of “related party transactions” in the annual report, there also have been vague allegations of improprieties involving Jaresko from one company insider, her ex-husband, Ihor Figlus. But his whistle-blowing was shut down by a court order issued at Jaresko’s insistence. John Helmer, a longtime foreign correspondent in Russia, disclosed the outlines of this dispute in an article examining Jaresko’s history as a recipient of U.S. AID’s largesse and how it enabled her to become an investment banker via WNISEF, Horizon Capital and Emerging Europe Growth Fund.

Helmer wrote: “Exactly what happened when Jaresko left the State Department to go into her government-paid business in Ukraine has been spelled out by her ex-husband in papers filed in the Chancery Court of Delaware in 2012 and 2013. … “Without Figlus and without the US Government, Jaresko would not have had an investment business in Ukraine. The money to finance the business, and their partnership stakes, turns out to have been loaned to Figlus and Jaresko from Washington.” According to Helmer’s article, Figlus had reviewed company records in 2011 and concluded that some loans were “improper,” but he lacked the money to investigate so he turned to Mark Rachkevych, a reporter for the Kyiv Post, and gave him information to investigate the propriety of the loans. “When Jaresko realized the beans were spilling, she sent Figlus a reminder that he had signed a non-disclosure agreement” and secured a temporary injunction in Delaware on behalf of Horizon Capital and EEGF to prevent Figlus from further revealing company secrets, Helmer wrote.

Article 1, Section 6 of the Constitution establishes an absolute free-speech right for members of Congress on the floor or in committee, even if they are disclosing classified material. It states that “for any Speech or Debate in either House, they shall not be questioned in any other Place.” Within hours of Colorado Senator Mark Udall losing his reelection bid last week, transparency activists were talking about how he should go out with a bang and put the Senate intelligence committee’s torture report into the congressional record.  The report is said to detail shockingly brutal abuse of detainees by the CIA during the George W. Bush administration, as well as rampant deception about the program by top officials. But the Obama White House is refusing to declassify even a summary of the report without major redactions. And Republicans take over the Senate in January.

Udall is one of two senators — along with fellow Intelligence Committee member Ron Wyden — who have consistently demanded greater transparency from the intelligence community. If he made the report public on the Senate floor or during a hearing, he couldn’t be prosecuted. The last time any senator did anything nearly so grand was in 1971, when Mike Gravel, two years into his 12 years representing the state of Alaska, entered 4,000 pages of the Pentagon Papers into the congressional record just before the U.S. Supreme Court lifted an injunction on publishing them in the press.

Now, Gravel is urging Udall to join the club. “If Udall wants to call me, I can explain this to him,” Gravel, pictured above, said in a phone interview from his home in Burlingame, Calif. Gravel’s recommendation: “What he’d have to do is call a subcommittee meeting like I did, late at night.”

Three cases that likely lay the groundwork for a major privacy battle at the U.S. Supreme Court are pending before federal appeals courts, whose judges are taking their time announcing whether they believe the dragnet collection of Americans' phone records is legal. It’s been more than five months since the American Civil Liberties Union argued against the National Security Agency program in New York, three months since legal activist Larry Klayman defended his thus far unprecedented preliminary injunction win in Washington, D.C., and two months since Idaho nurse Anna Smith’s case was heard by appeals judges in Seattle. At the district court level, judges handed down decisions about a month after oral arguments in the cases. It’s unclear what accounts for the delay. It’s possible judges are meticulously crafting opinions that are likely to receive wide coverage, or that members of the three-judge panels are clashing on the appropriate decision.

Attorneys involved in the cases understandably are reluctant to criticize the courts, but all express hope for speedy resolution of their fights against alleged violations of Americans’ Fourth Amendment rights.

Though it’s difficult to accurately predict court decisions based on oral arguments, opponents of the mass surveillance program may have reason for optimism.

The first (and thus far only) roll-back of post-9/11 surveillance authorities was implemented over the weekend: The National Security Agency shuttered its program for collecting and holding the metadata of Americans’ phone calls under Section 215 of the Patriot Act. While bulk collection under Section 215 has ended, the government can obtain access to this information under the procedures specified in the USA Freedom Act. Indeed, some experts have argued that the Agency likely has access to more metadata because its earlier dragnet didn’t cover cell phones or Internet calling. In addition, the metadata of calls made by an individual in the United States to someone overseas and vice versa can still be collected in bulk — this takes place abroad under Executive Order 12333. No doubt the NSA wishes that this was the end of the surveillance reform story and the Paris attacks initially gave them an opening. John Brennan, the Director of the CIA, implied that the attacks were somehow related to “hand wringing” about spying and Sen. Tom Cotton (R-Ark.) introduced a bill to delay the shut down of the 215 program. Opponents of encryption were quick to say: “I told you so.”

But the facts that have emerged thus far tell a different story. It appears that much of the planning took place IRL (that’s “in real life” for those of you who don’t have teenagers). The attackers, several of whom were on law enforcement’s radar, communicated openly over the Internet. If France ever has a 9/11 Commission-type inquiry, it could well conclude that the Paris attacks were a failure of the intelligence agencies rather than a failure of intelligence authorities. Despite the passage of the USA Freedom Act, US surveillance authorities have remained largely intact. Section 702 of the FISA Amendments Act — which is the basis of programs like PRISM and the NSA’s Upstream collection of information from Internet cables — sunsets in the summer of 2017. While it’s difficult to predict the political environment that far out, meaningful reform of Section 702 faces significant obstacles. Unlike the Section 215 program, which was clearly aimed at Americans, Section 702 is supposedly targeted at foreigners and only picks up information about Americans “incidentally.” The NSA has refused to provide an estimate of how many Americans’ information it collects under Section 702, despite repeated requests from lawmakers and most recently a large cohort of advocates. The Section 215 program was held illegal by two federal courts (here and here), but civil attempts to challenge Section 702 have run into standing barriers. Finally, while two review panels concluded that the Section 215 program provided little counterterrorism benefit (here and here), they found that the Section 702 program had been useful.

There is, nonetheless, some pressure to narrow the reach of Section 702. The recent decision by the European Court of Justice in the safe harbor case suggests that data flows between Europe and the US may be restricted unless the PRISM program is modified to protect the information of Europeans (see here, here, and here for discussion of the decision and reform options). Pressure from Internet companies whose business is suffering — estimates run to the tune of $35 to 180 billion — as a result of disclosures about NSA spying may also nudge lawmakers towards reform. One of the courts currently considering criminal cases which rely on evidence derived from Section 702 surveillance may hold the program unconstitutional either on the basis of the Fourth Amendment or Article III for the reasons set out in this Brennan Center report. A federal district court in Colorado recently rejected such a challenge, although as explained in Steve’s post, the decision did not seriously explore the issues. Further litigation in the European courts too could have an impact on the debate.

This morning, the Second Circuit issued a follow-on ruling to its May decision in ACLU v. Clapper (which had held that the NSA’s bulk telephone records program was unlawful insofar as it had not properly been authorized by Congress). In a nutshell, today’s ruling rejects the ACLU’s request for an injunction against the continued operation of the program for the duration of the 180-day transitional period (which ends on November 29) from the old program to the quite different collection regime authorized by the USA Freedom Act. As the Second Circuit (in my view, quite correctly) concluded, “Regardless of whether the bulk telephone metadata program was illegal prior to May, as we have held, and whether it would be illegal after November 29, as Congress has now explicitly provided, it is clear that Congress intended to authorize it during the transitionary period.” So far, so good. But remember that the ACLU’s challenge to bulk collection was mounted on both statutory and constitutional grounds, the latter of which the Second Circuit was able to avoid in its earlier ruling because of its conclusion that, prior to the enactment of the USA Freedom Act, bulk collection was unauthorized by Congress. Now that it has held that it is authorized during the transitional period, that therefore tees up, quite unavoidably, whether bulk collection violates the Fourth Amendment. But rather than decide that (momentous) question, the Second Circuit ducked:

We agree with the government that we ought not meddle with Congress’s considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief. To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless. In other words, because any constitutional violation is short-lived, and because it results from the “considered decision” of Congress, it would be fruitless to actually resolve the constitutionality of bulk collection during the transitional period.

Hopefully, it won’t take a lot of convincing for folks to understand just how wrong-headed this is. For starters, if the plaintiffs are correct, they are currently being subjected to unconstitutional government surveillance for which they are entitled to a remedy. The fact that this surveillance has a limited shelf-life (and/or that Congress was complicit in it) doesn’t in any way ameliorate the constitutional violation — which is exactly why the Supreme Court has, for generations, recognized an exception to mootness doctrine for constitutional violations that, owing to their short duration, are “capable of repetition, yet evading review.” Indeed, in this very same opinion, the Second Circuit first held that the ACLU’s challenge isn’t moot, only to then invokes mootness-like principles to justify not resolving the constitutional claim. It can’t be both; either the constitutional challenge is moot, or it isn’t. But more generally, the notion that constitutional adjudication of a claim with a short shelf-life is “fruitless” utterly misses the significance of the establishment of forward-looking judicial precedent, especially in a day and age in which courts are allowed to (and routinely do) avoid resolving the merits of constitutional claims in cases in which the relevant precedent is not “clearly established.” Maybe, if this were the kind of constitutional question that was unlikely to recur, there’d be more to the Second Circuit’s avoidance of the issue in this case. But whether and to what extent the Fourth Amendment applies to information we voluntarily provide to third parties is hardly that kind of question, and the Second Circuit’s unconvincing refusal to answer that question in a context in which it is quite squarely presented is nothing short of feckless.