Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"? Isn't the whole point of a constitutional challenge to address things illegal things authorized by the government?
There is a doctrine called "constitutional avoidance" - if a court can decide a case on grounds without reaching a constitutional question (particularly a close question), it ought to decide the case on the alternative grounds and avoid the constitutional question.
So, for example, a court might say: This action was improper because it was not authorized by Congress. That is all we need to decide. Because we made this decision, we don't need to reach the constitutional question. Of course, if Congress had authorized this action (or now does so), and this case is back before us, we will no longer be able to take that path. We may, at that time, decide that the congressionally-authorized action is unconstitutional. But because there is no need to do reach that decision at this time, we decline to do so.
The constitutional challenge was dismissed because it was found to be constitutional under existing jurisprudence. See discussion in the lower court's memorandum opinion and order starting on the bottom of page 38[1].
Smith v. Maryland, abridged, said that we have no privacy interest in the metadata sent to a third party in order to complete a call. In the words of 4th amendment jurisprudence, we don't have a reasonable expectation of privacy in items we voluntarily disclose to third parties. As such, the collection of this information by the government is not a search for 4th amendment purposes, and therefore falls entirely outside 4th amendment protection.
THE ACLU's constitutional argument is a novel one that has not yet become binding precedent on lower courts, call the mosaic theory, though it is gaining ground in some recent Supreme Court decisions. See Orin Kerr's paper on this theory of a search.[2]
> In the words of 4th amendment jurisprudence, we don't have a reasonable expectation of privacy in items we voluntarily disclose to third parties.
I would hope that thinking on this evolves, to the point that we have a reasonable expectation that information we've voluntarily disclosed to a third party stays between us and that third party. Because that is exactly my personal expectation, notwithstanding my other expectation that it will be violated.
Mosaic theory doesn't go that far, but in the age of widespread statistical inference, it is an important development.
Generally speaking, the public is entitled to all evidence. Certain rights, such as the Fifth amendment, protect you from being compelled to testify against yourself, but you have no right to prevent, nor does anyone else have the right to refuse, to testify against or about you, except for a very small and declining set of common law privileges, and even those only apply in certain circumstances.
Indeed, and there's where we need mosaic the most. As it stands, the collection of this type of data (Smith) is not even a search, and therefore the court does not even consider whether or not it was reasonable. It just stops there. If it were found to be a search, it might still come in, but perhaps for a different reason. There's a great cartoon, which contains this awesome flowchart: http://lawcomic.net/guide/?p=2256
That is a matter of law, not thinking. We have specific laws in cases where you can expect that information you disclose to others should be kept secret. Attorney-client privilege, HIPAA, etc. That alone should tip you off that types of communication without such restrictions are not protected.
Seems to me the lawyers would attempt to throw noodles at the wall until something sticks. The "authorized by Congress" noodle stuck to the wall of the lower court. A higher court told them they needed to have cleaned their walls first.
Whether the lower court should have accepted the "authorized by Congress" argument is another matter, but the reason might be that the judge agreed. Or maybe he didn't feel convinced by the challenger's arguments. Or maybe he was having a bad day. I hope it wasn't the latter. Anyway, this is why the appeals system even exists - seems to be working.
Or, given the case at hand, they had some things on him he didn't want "leaked". Might sound paranoid, but that is one of the core reasons why such systems are so bad, right ?
Exactly right. And the fact that such tin-hat conversations are at all credible (reality or not) today is an indication that someone has fucked up, very badly and very existentially.
We just can't take seriously any statement made by spies, whether they're false or true. Even statements that are provably true have a good chance at being in front of a bad motive. They game others as their day job, after all.
That's why it's going back to be reviewed but it's not why it was dismissed in the first place.
The government asked for dismissal because
1: The ACLU lacks standing (denied)
2: Sovereign Immunity (upheld but reversed)
3: Bulk collection was authorized by congress (upheld but reversed)
4: bulk collection does not violate 4th or 1st amendments (upheld)
tl;dr: Court: Authorized by congress and constitutional. Appeals Court: Not authorized by congress, therefore we can ignore any constitutional aspects of it.
> Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"?
The Constitutional limits on what the executive can do on its own authority are different than the Constitutional limits on what the Congress can authorize the Executive to do. So, its quite possible that "it was authorized by Congress" could be a decisive consideration in a case challenging an executive action as unconstitutional.
An action by a federal agency can be constitutionally challenged as being outside of the scope or powers granted to that agency by congress. The constitutional challenge thus would be that the agency is operating outside of the checks and balances system the constitution lays out.
Congress has in the past and can today authorize agencies to do things like collect data on US citizens for national security purposes or public safety purposes.
What you describe is a statutory challenge. A constitutional challenge would be that the statute authorizing the conduct went beyond the enumerated powers in the Constitution, or that the conduct went beyond the President's inherent Article II authorities, or that it violated rights protected by the Bill of Rights.
That someone is violating checks and balances isn't really a cause of action; you would be more specific in your case.
