I’ve now had a chance to look at the report of the Privacy and Civil Liberties Oversight Board on section 215 and the telephone metadata program.

What a disappointment.

The PCLOB declares by a bare majority that the program is unlawful and should be shut down.  The report’s 45-page (!) statutory analysis reads like an opinion written by a court that is bound and determined to reach a favored outcome.

Elsewhere the PCLOB expresses enthusiasm for adversarial briefing and argument: “Our judicial system thrives on the adversarial presentation of views.” The PCLOB majority, though, would apparently prefer to thrive without the hassle of, you know, briefs and arguments and stuff, especially if they might get in the way of its preferred legal determination.

Rachel Brand in dissent gives the entire 45-page exegisis the back of her hand, and with justification:

This legal question will be resolved by the courts, not by this Board, which does not have the benefit of traditional adversarial legal briefing and is not particularly well-suited to conducting de novo review of long-standing statutory interpretations.

The other dissenter, Elisabeth Cook, similarly devotes only a sentence to the statutory issue and the Board’s effort to play judge.

I don’t think it’s because the dissenters lacked for ammunition to rebut the majority’s statutory  labored and tendentious argument.  I suspect that they thought the whole thing was pointless and largely self-rebutting.

I feel the same way, but I can’t help pointing out a few of the flaws in this part of the report.

First, the Board argues that all the phone records in the country can’t be deemed “relevant” to an FBI investigation of terrorism. That has some plausibility, since the vast majority of phone records aren’t going to be relevant to any investigation.

The problem for the Board is that the law has never required that discovery orders exclude  all irrelevant data. In fact, courts have routinely approved civil, criminal, and administrative orders that  sweep up lots and lots of utterly irrelevant information about perfectly innocent parties. The best you can say about the law in this area is that it allows the government to subpoena information in buckets, even if only a few spoonfuls of clearly relevant information can be found in each bucket.

The courts have struggled with exactly how many spoonfuls of relevant data in how big a bucket of irrelevant data can still be obtained in discovery. As the majority admits:

To be sure, the case law regarding civil discovery, grand jury subpoenas, and administrative subpoenas shows that relevance is interpreted broadly, and that incidental production of unrelated materials is accepted as essential to enable fulsome investigative efforts. Standards of relevance thus permit parties and the government to engage in a degree of fishing, so long as it is not arbitrary or in bad faith. But the case law makes equally clear that the definition of relevance is not boundless.

And here’s the problem with the majority analysis:  It tries to talk about the program as though the government were actually searching every piece of metadata in the database.  But we all know by now that the order requiring production of the data was matched by an order greatly restricting searches to a few hundred a year, searches that are relevant to terror investigations under the most demanding standard imaginable.

Viewed as a whole, the 215 metadata program is like a discovery order telling a party to put a mass of records into a court-supervised escrow, where the mass will be searched for a few bits of relevant data that are then supplied to the other party.

The Board majority is willfully blind to the direct connection between the production order and the minimization requirements that accompany it.  There’s an old joke that to think like a lawyer you have to be able to treat two intimately connected facts as though they were completely unrelated. If so, the Board’s majority opinion is the most lawyerly thing I’ve read in years.

One more point.  Section 215 was renewed twice by Congress after the FIS court approved the current interpretation of “relevant.” Since  Congressional action re-enacting a statute is usually viewed as approving the administrative and judicial interpretations adopted before reenactment, this is kind of a bad fact for the Board majority.

They respond with a flurry of argument (never an indication of confidence).  Extending section 215’s sunset date isn’t the same as re-enacting it, they say.  And the rule on reenactments doesn’t apply if the language of the statute is clear; since the  Board majority is sure that its one-eye-closed reading of section 215 is plainly right, it can ignore the reenactment rule  (a particularly ballsy statement given that the three Board members’ interpretation has so far lost 15-1 in front of actual  judges).

Finally, the Board majority says the reenactment doctrine doesn’t apply because, while the FIS court’s interpretation of 215 was known to the intelligence and judiciary committees of both houses and to many other members as well, it was still classified and so not known to all members or the public.

This argument is also willfully blind, this time to the ruling Supreme Court precedent, Lorillard v. Pons, 434 U.S. 575 (1978).  That case held that jury trials were available in private enforcement actions under the Age Discrimination in Employment Act (ADEA), even though the act said nothing about jury trials.  Why?  Because the ADEA said that it would “be enforced in accordance with the ‘powers, remedies, and procedures’ of the Fair Labor Standards Act (FLSA).”

Now, the FLSA doesn’t say anything about jury trials either, but the courts interpreting that Act had all decided that it did allow them in private suits. So the Supreme Court presumed that Congress understood that when it adopted the “procedures” of the FLSA it was adopting the jury trial interpretation of courts applying the FLSA: “[W]here, as here, Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.”

So here’s my question:  How many members of Congress had any idea that they were incorporating those FLSA decisions into the ADEA, let alone what the decisions said?  One?  Five? If more than a handful of committee chairmen and floor managers were even vaguely aware of the cases the Supreme Court presumed they fully grasped, I’ll eat my hat.

The members of Congress who understood the interpretation of section 215 when they voted on its extension probably outnumber by ten or twenty or even a hundred to one the Congressmen who understood that the ADEA required a jury trial when that law was adopted.

The Board majority claims that “it is not a legitimate method of statutory construction to presume that these legislators, when reenacting the statute, intended to adopt a prior interpretation that they had no fair means of evaluating.” The problem with that statement is that it could have been made with equal justice about the ADEA and the Supreme Court’s statutory construction in Pons.  (Pons also puts a hole below the waterline of the claim that the presumption only applies to “real” reenactments, since the Pons Court applied the presumption to interpretations of the FLSA, a statute that wasn’t being reenacted at all.)

So the Board majority in the end stumbles into overturning the entire reenactment doctrine in its zeal to kill an important national security program. Life is hard when you try to make law without briefs and arguments and stuff.

Since the report’s recommendation to abandon the 215 program has already been rejected by President Obama, much of the Board’s report thus boils down to an unpersuasive amicus brief aimed at undermining the President’s lawyers  in the Second and DC circuits.

I would have expected a more serious and useful work product from the Board, especially in its first outing.