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Media Alerts - ACLU v. Clapper
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November 1, 2015
  ACLU v. Clapper
Headline: Second Circuit Allows the NSA's Bulk Telephone Metadata Collection to Continue During the 180-Day Transition Period Between the Now-Expired Patriot Act and the Newly-Passed USA Freedom Act

Areas of Law: National Security

Issue(s) Presented: Whether, given that the Second Circuit previously held that the Patriot Act did not authorize the NSA's bulk telephone metadata collection program, the court should enjoin this program from continuing during the 180-Day transition between the Patriot Act and the new USA Freedom Act.

Brief Summary: In May of 2015, in response to a lawsuit brought by the ACLU, the Second Circuit held that the National Security Agency's (NSA) bulk telephone metadata collection program was not authorized by the Patriot Act of 2001. Under this program, which Edward Snowden publicized in 2013, the NSA had been collecting metadata about telephone calls made by and to Americans, and then placing that metadata (which included information about the length of the call and phone numbers involved, but not about the content of the call) in a repository for later use. After the Second Circuit's 2015 ruling, Congress allowed the Patriot Act to expire and immediately replaced it with the USA Freedom Act of 2015, passed on June 2, 2015, which allows the government to collect call detail records only if certain requirements are met. The Freedom Act also stated that these rules would take effect 180 days after the date of enactment of the Act (i.e., on November 29. 2015). Upon passage of the Freedom Act, the federal government asked the Foreign Intelligence Surveillance Court to permit it to continue the original telephone metadata program during the 180-day transition period. The ACLU then moved for a preliminary injunction to halt continuation of the telephone metadata program, and also reiterated its underlying constitutional challenges to bulk telephone metadata collection. The Second Circuit, however, denied the injunction - concluding that Congress had intended to authorize the continuation of the program for the 180-day transition period - and declined to reach the ACLU's underlying constitutional challenges at this time, given Congress's conclusion "that this type of data collection shall not be authorized in the future."

To read the full opinion, please visit

Panel: Circuit Judges Sack and Lynch; District Judge Broderick (S.D.N.Y.), by designation

Argument Date: September 2, 2015

Date of Issued Opinion: October 29, 2015

Docket Number: 14-42-cv

Decided: October 29, 2015

Case Alert Author: Jake B. Sher

Counsel: Alexander Abdo, American Civil Liberties Union, for Plaintiff-Appellants; Henry C. Whitaker, United States Department of Justice, for Defendant-Appellee.

Author of Opinion: Judge Lynch

2nd Circuit

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 11/01/2015 08:29 PM     2nd Circuit  

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