The question posed by Appellants invokes one of the most difficult issues of modern jurisprudence: whether modern technology changes traditional and reasonable expectations of privacy. The Fourth Amendment issue raised here, as we noted earlier, is a “dispute [that] touches an issue on which the Supreme Court’s jurisprudence is in some turmoil.” Whatever we might ultimately conclude about the Constitution’s demands in such a novel and contentious area, it is, at a minimum, difficult to conclude that Appellants are “likely to succeed” in arguing that new conditions require a reconsideration of the reach of a long‐established precedent.The government urges us not to reach these issues, because we should respect the judgment of the democratically elected branches of government to dismantle the program in a way that heeds national security concerns. 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.
October 29, 2015 at 3:09 PM EDT