Case 14-42, Document 232, 10/29/2015, 1630516, Page1 of 25

14‐42
ACLU v. Clapper

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

August Term, 2015
(Argued: September 2, 2015

Decided: October 29, 2015)

Docket No. 14‐42‐cv________________AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,NEW YORK CIVIL LIBERTIES UNION, and NEW YORK CIVIL LIBERTIES UNIONFOUNDATION,
Plaintiffs‐Appellants,— v. —JAMES R. CLAPPER, in his official capacity as Director of National Intelligence,
MICHAEL S. ROGERS, in his official capacity as Director of the National Security
Agency and Chief of the Central Security Service, ASHTON B. CARTER, in his
official capacity as Secretary of Defense, LORETTA E. LYNCH, in her official
capacity as Attorney General of the United States, and JAMES B. COMEY, in his
official capacity as Director of the Federal Bureau of Investigation,
Defendants‐Appellees.

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B e f o r e:
SACK and LYNCH , Circuit Judges, and BRODERICK, District Judge.*__________________
Plaintiffs‐appellants American Civil Liberties Union and American Civil
Liberties Union Foundation, and New York Civil Liberties Union and New York
Civil Liberties Union Foundation, move for a preliminary injunction, requesting
various relief. We conclude that Congress intended to authorize the continuationof the bulk telephone metadata collection program for a limited period of 180
days, and decline to reach the constitutional issues for prudential reasons. We
therefore DENY the motion for a preliminary injunction and REMAND for
further proceedings in the district court.

ALEXANDER ABDO, American Civil Liberties Union Foundation (Jameel
Jaffer, Patrick Toomey, American Civil Liberties Union Foundation,
New York, NY; Christopher T. Dunn, Arthur N. Eisenburg, New York
Civil Liberties Union Foundation, New York, NY, on the brief), New
York, NY, for Plaintiffs‐Appellants.
HENRY C. WHITAKER, United States Department of Justice (Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, United States
Department of Justice, Washington, DC; Douglas N. Letter, H. Thomas*

The Honorable Vernon S. Broderick, of the United States District Court for theSouthern District of New York, sitting by designation.
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Byron III, Civil Division, Appellate Staff, United States Department ofJustice, Washington, DC; Preet Bharara, United States Attorney for theSouthern District of New York, New York, NY; David S. Jones, John D.
Clopper, Benjamin H. Torrance, Assistant United States Attorneys,
New York, NY, on the brief), Washington, DC, for Defendants‐Appellees.

GERARD E. LYNCH, Circuit Judge:
This opinion concerns the effect of the passage of the USA FREEDOM Act(“Freedom Act”) on ongoing litigation surrounding the legality of thegovernment’s bulk telephone metadata collection program. We addressed themerits in an earlier opinion, ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015). In that
opinion we held that the bulk telephone metadata collection program was not
authorized by provisions of the USA PATRIOT Act (“Patriot Act”). Subsequent
to that decision, Congress passed the Freedom Act, which effectively put an end
to the telephone metadata program and created an alternative program, but
provided for a 180‐day transition period. The effect of this transition period is
the primary issue before the Court. Appellants move for a preliminary injunction
to bar the government, during the pendency of the litigation, from collecting
Appellants’ call records under the telephone metadata program, to require thegovernment to quarantine all of Appellants’ call records already collected under3

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the program, and to prohibit the government from querying metadata obtained
through the program using any phone number or other identifier associated withthem. While we find that Appellants’ claims are not moot at this time, we decline
to disturb the decision by Congress to provide for a 180‐day transition period to
put an orderly end to the telephone metadata program. We therefore deny the
motion for a preliminary injunction.
BACKGROUND
The underlying appeal concerns the legality of the bulk telephone
metadata collection program, under which the National Security Agency(“NSA”) collects metadata about telephone calls made by and to Americans, andaggregates those metadata into a repository that can later be queried. Telephone
metadata does not include the contents of a telephone call, but rather the details
about the call, such as the length of the call, the phone number from which the call
was made, and the phone number at which the call was received – information
sometimes referred to as call detail records.
Attention to the issue of bulk surveillance of American citizens by thegovernment has sharply increased among the American public, the courts, andthe legislature since Edward Snowden began his highly publicized disclosures of4

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confidential information about the program in 2013. Recently, we issued an
opinion in this case, finding that the bulk telephone metadata program in use by
the NSA was not authorized by § 215 of the USA PATRIOT Act of 2001, Pub. L.
No. 107‐56, 115 Stat. 272 (2001), which amended the Foreign Intelligence
Surveillance Act of 1978 (“FISA”), Pub. L. No. 95‐511, 92 Stat. 1783 (1978)(codified as amended at 50 U.S.C. §§ 1801 et seq.). Shortly thereafter, Congress
allowed the Patriot Act to expire, then passed the USA FREEDOM Act of 2015,
Pub. L. No. 114‐23, 129 Stat. 268 (2015), which altered § 215 in significant ways.
I.

Section 215
In 1978, Congress enacted FISA, comprehensive legislation aimed atcurtailing abuses and delineating procedures to be employed in conducting
surveillance in foreign intelligence investigations. Congress amended FISA after
the terrorist attacks of September 11, 2001, in the Patriot Act.
Section 215 of the Patriot Act allows the director of the FBI or his designee tomake an application for an order requiring the
production of any tangible things (including books,
records, papers, documents, and other items) for aninvestigation to obtain foreign intelligence information
not concerning a United States person or to protect
against international terrorism or clandestine
intelligence activities.
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50 U.S.C. § 1861(a)(1). In its current form, in effect until November 29, 2015, theprovision requires such an application to include
a statement of facts showing that there are reasonablegrounds to believe that the tangible things sought are
relevant to an authorized investigation (other than athreat assessment) conducted in accordance withsubsection (a)(2) to obtain foreign intelligence
information not concerning a United States person or toprotect against international terrorism or clandestine
intelligence activities.
Id. § 1861(b)(2)(A).
II.

The May 7 Order
On June 11, 2013, the appellants in this matter, the American Civil Liberties

Union and American Civil Liberties Union Foundation (collectively, “ACLU”)
and the New York Civil Liberties Union and New York Civil Liberties Union
Foundation (collectively, “NYCLU”) sued the government officials responsible
for administering the telephone metadata program, challenging the program on
both statutory and constitutional grounds and seeking declaratory and injunctive
relief. Appellants’ complaint asked the court to declare that the telephone
metadata program exceeded the authority granted by § 215, and also violated theFirst and Fourth Amendments to the U.S. Constitution. The complaint also asked
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the court to permanently enjoin the government from continuing the program,and to order the government to “purge from their possession all of the callrecords of Plaintiffs’ communications” collected in accordance with the program.
Complaint at 10, ACLU v. Clapper, No. 1:13‐cv‐03994‐WHP (S.D.N.Y. 2013).
On May 7, 2015, this Court held that § 215 of the Patriot Act did not
authorize the bulk telephone metadata program. We reasoned that if Congress
had intended to authorize bulk collection of virtually all metadata associatedwith telephone calls made by and to Americans, it would have done so explicitly.
The collection of these call detail records was not “relevant” to authorizedcounterterrorism investigation by the government under 50 U.S.C. §1861(b)(2)(A), and thus, the telephone metadata program exceeded the authority
granted by FISA. Clapper, 785 F.3d at 818–19, 826.
III.

The USA FREEDOM Act
Section 215, along with certain other provisions of the Patriot Act, expiredon June 1, 2015. See PATRIOT Sunsets Extension Act of 2011, Pub. L. No. 112‐14,
125 Stat. 216 (2011). On June 2, 2015, Congress passed the Freedom Act, which
the President has signed into law. The Freedom Act amends § 215 in significant
ways.
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The Freedom Act amends § 215 of the Patriot Act to permit the government
to collect call detail records under 50 U.S.C. § 1861 only if it meets certain“additional requirements,” including a “reasonable, articulable suspicion thatsuch specific selection term is associated with a foreign power . . . or an agent of aforeign power engaged in international terrorism or activities in preparation
therefor.” USA FREEDOM Act § 101(a)(3). This provision provides for morenarrowly tailored and targeted collection of call detail records. Section 101 also
requires the government to adopt minimization procedures that “require theprompt destruction” of call detail records produced that it determines are notforeign intelligence information. Id. § 101(b)(3)Section 103 of the Freedom Act, titled “Prohibition on Bulk Collection of
Tangible Things,” states that “[n]o order issued under this subsection may
authorize the collection of tangible things without the use of a specific selectionterm” that meets certain requirements. Id. The purpose of § 103 is to “make[]clear that the government may not engage in indiscriminate bulk collection of
any tangible thing or any type of record.” H.R. Rep. No. 114‐109, pt. 1, at 18(2015). Section 103 is also intended to “restore meaningful limits to the8Case 14-42, Document 232, 10/29/2015, 1630516, Page9 of 25‘relevance’ requirement of Section 501, consistent with the opinion of the U.S.
Court of Appeals for the Second Circuit in ACLU v. Clapper.” Id. at 19.
Largely at issue in the present dispute is § 109, titled “Effective Date,”
which delays the effective date of §§ 101–103 above, sections dealing specificallywith the telephone metadata program. Section 109 states, “The amendments
made by sections 101 through 103 shall take effect on the date that is 180 days
after the date of the enactment of this Act.”1 Section 109 further states that[n]othing in this Act shall be construed to alter or
eliminate the authority of the Government to obtain anorder under title V of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) as ineffect prior to the effective date described in subsection(a) during the period ending on such effective date.
USA FREEDOM Act § 109.
On the day the Freedom Act was enacted, the government asked theForeign Intelligence Surveillance Court (“FISC”), which provides judicial
oversight of classified intelligence community activities, to allow it to continue
the telephone metadata program during the 180‐day transition period, arguingthat § 109 constituted an authorization to continue bulk collection during that1

As the Act was enacted on June 2, 2015, the effective date for §§ 101–103 became
November 29, 2015.
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period to “allow for the orderly termination” of that collection. See Mem. of Law
at 5, In re Application of the FBI for an Order Requiring the Production of
Tangible Things, No. BR 15‐75 (FISA Ct. June 2, 2015). On June 29, the FISC
granted the June 2 application of the government to continue the bulk datacollection for the 180‐day period. Opinion & Order, In re Application of the FBI
for an Order Requiring the Production of Tangible Things, No. BR 15‐75 (FISA Ct.
June 29, 2015).
On June 9, this Court directed the parties to submit supplemental briefs
regarding the effect of the Freedom Act on the case, and in particular whether
any or all of Appellants’ claims had been rendered moot as a result of thatlegislation. We further ordered that the issuance of the mandate in this action be
stayed pending the parties’ supplemental briefing. Appellants responded to thisorder by moving for a preliminary injunction to halt the telephone metadata
program, during the pendency of this suit, with regards to themselves, andrequesting that the case be remanded to the district court for further
consideration and the entry of final relief.

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DISCUSSION
I.

Mootness
Appellants seek, through a preliminary injunction during the pendency ofthis suit, to bar the government from collecting Appellants’ call records under the
telephone metadata program, to require the government to quarantine all ofAppellants’ call records already collected under the program, and to prohibit the
government from querying metadata obtained through the program using any
phone number or other identifier associated with them. They also ask the Court
to remand the case so that the district court may grant the final relief they seek, to
end the bulk telephone metadata program, and purge the records collectedunlawfully. These requests assume that their claims are not moot.
First, Appellants ask us to enjoin the government from continuing tocollect and query their call detail records during the 180‐day transition period.
Appellants argue, and the government concedes, that these claims are not moot,because a decision to grant a preliminary injunction on behalf of the plaintiffs by
this Court would have effect, at least until November 29. Therefore, Appellants’request for relief to halt the collection and querying of Appellants’ records during
the 180‐day transition period is not moot.
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Appellants and the government disagree, however, regarding themootness of the final relief requested after November 29: an injunction thatwould require the government to end the telephone metadata program andpurge records collected unlawfully. Appellants argue that the government
intends to retain the records “indefinitely,” and are under no outside obligation
to purge them, and thus that their claims for relief will not become moot on
November 29. The government argues that the claims will be moot on November
29, because the telephone metadata program will cease at that time, and an orderenjoining the telephone metadata program will have no effect.
Further, the government notes that the Office of the Director of National
Intelligence has announced that the government will not use § 215 data for law
enforcement or investigatory purposes after November 29. See Statement by the
ODNI on Retention of Data Collected Under Section 215 of the USA PATRIOTAct (July 27, 2015). Additionally, the government states that it will destroy all
records as soon as possible after the government’s litigation‐preservation
obligations end, id., and thus Appellants’ requests that their information nolonger be queried and that their records be purged will also be moot.
However, Appellants have asked us to remand to the district court for12

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consideration of its final relief, and relief after November 29 is not requested
under the preliminary injunction. Whether a federal court has the authority toorder the government to purge records, and which if any of Appellants’ claims
become moot on November 29, are questions for the district court. See e.g., Doev. Gonzalez, 449 F.3d 415, 419 (2d Cir. 2006) (remanding to allow the district
court to address constitutional questions in the first instance following legislative
revision of the statute at issue); Cf. Lewis v. Continental Bank Corp., 494 U.S. 472,482 (1990) (“[I]n instances where the mootness is attributable to a change in thelegal framework governing the case, and where the plaintiff may have someresidual claim under the new framework that was understandably not asserted
previously, our practice is to vacate the judgment and remand for further
proceedings in which the parties may, if necessary, amend their pleadings ordevelop the record more fully.”). The claims for which Appellants now seek apreliminary injunction are not moot, at least at this time, as the government
concedes. We therefore proceed to determine whether Appellants are entitled tosuch an injunction.
II.

Preliminary Injunction
A preliminary injunction is an equitable remedy and an act of discretion by
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the court. A party seeking a preliminary injunction must generally show alikelihood of success on the merits, a likelihood of irreparable harm in theabsence of preliminary relief, that the balance of equities tips in the party’s favor,
and that an injunction is in the public interest. Winter v. NRDC, 555 U.S. 7, 20(2008).
Appellants argue that they are likely to succeed on the merits, because thisCourt earlier held that the telephone metadata program was not authorized by§ 215, which the Freedom Act leaves in place as the governing law for the 180‐
day transition period, and that they will suffer irreparable injury, because
irreparable harm is presumed where there is an alleged deprivation of
constitutional rights. Statharos v. New York City Taxi & Limousine Comm’n, 198
F.3d 317, 322 (2d Cir. 1999). Even if this presumption does not apply, they argue,
the continuation of the telephone metadata program means the continuation of
the government’s intrusion into Appellants’ private communications. They
argue that the government will not be unduly harmed by the narrow preliminary
injunction as to their records that they request at this time.
First, we must determine whether the Freedom Act authorizes thecontinuation of the bulk telephone metadata collection program during the 180‐
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day transition period. Appellants argue that the transition period cannot
authorize the use of bulk collection, because we earlier found that the plain
language of the statute did not authorize it, and Congress did not change thelanguage for the duration of the 180‐day period. The government argues that, incontext, the inclusion of a 180‐day delay can only mean that Congress intended toallow the telephone metadata program to continue during the transition period,in order to facilitate the orderly transition to the new, targeted surveillance
regime.
Certainly it is true that if statutory language is plain, we must enforce it
according to its terms. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251(2010). However, “when deciding whether the language is plain, we must read
the words in their context and with a view to their place in the overall statutory
scheme.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (internal quotation marks
omitted). We must also strive to avoid interpretations of a statute that would
render any phrase or provision superfluous. TRW Inc. v. Andrews, 534 U.S. 19,
31 (2001).
Appellants note that we earlier held that a decision by Congress toauthorize such surveillance must be “expressed in unmistakable language.”15

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Clapper, 785 F.3d at 818. They argue that because Congress left the language of
the Act unchanged during the transition period, the surveillance must remain
unauthorized. Because Congress was legislating, as the ACLU puts it, “in the
shadow of this Court’s May 7 opinion,” it could only have meant, by delaying theeffective date of §§ 101–103, to legislatively ratify our understanding of thestatute as not authorizing bulk collection. Motion & Brief for Appellants at 10.
While this line of reasoning has some surface appeal, we must disagree.
To argue that the plain language of the present statute is clear based on its
previous form is spurious. Congress passed the Freedom Act in part to prohibit
bulk telephone metadata collection, and in doing so endorsed our understandingof the key term “relevance.” See H.R. Rep. No. 114‐109, at 19. Contrary toAppellants’ assertion, the language of the Act as a whole has not remained
unchanged. The statute has been amended in several important respects,
including to prohibit bulk telephone metadata collection, with a provisiondelaying that effective date by 180 days. That is far from a mere reenactment thatfails to give a clear indication that Congress made an affirmative decision
regarding its intention.

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In the same passage of our prior opinion noting the requirement of“unmistakable language,” we further noted that we would expect a decision by
Congress whether to authorize a program such as the bulk telephone metadata
collection to be “preceded by substantial debate.” Clapper, 785 F.3d at 818. That
debate has now unquestionably occurred. Unlike previous extensions of thePatriot Act, the Freedom Act was the result of more than two years of discussion
and debate by Congress over the proper scope of bulk data collection under§ 215. While the present Congress cannot tell us what the Congress that passed
the Patriot Act intended to authorize, its intent in passing the Freedom Act isclear. The 180‐day transition period represents Congress’s considered judgmentthat there should be time for an orderly transition from the existing program tothe new, targeted surveillance program. That orderly transition requires that the
government retain the tools it has been using to investigate threats of foreign
terrorism until new tools may be put in place. We agree with the governmentthat Congress reached a compromise, supported by the President: to end thetelephone metadata program, but to allow for a 180‐day transition period. The
intention of the democratically elected branches of government is thus clear.

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Looking to the legislative history, which is informative though notdecisive, the discussions regarding the 180‐day transition period lend credence tothis compromise. First, Congress had before it the government’s representations
that the NSA’s transition to the new model of targeted production would requiretime to be “fully operational.” 161 Cong. Rec. S3275 (daily ed. May 22, 2015)(statement of Sen. Leahy) (quoting letter from National Security Agency
Director). Second, there was explicit debate in Congress as to the exact length of
the transition period. Some members of Congress desired a longer transition
period to “make sure the technology is in place for this program to continue.”See 161 Cong. Rec. S3391 (daily ed. June 1, 2015) (statement of Sen. Burr). Other
members preferred to keep the transition period to 180 days, and explicitly
rejected proposals to “include a provision to keep the bulk collection program inplace for more than two years” because the “NSA Director stated . . . that the
NSA only needs 180 days to transition to the new targeted program.” 161 Cong.
Rec. S3275 (daily ed. May 22, 2015) (statement of Sen. Leahy). A “sharedpremise” of Congress in debating the length of the transition period, thegovernment argues, was that the bulk collection would continue during thetransition period. Brief for Appellees at 9.
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Appellants point to no evidence in the legislative history to support thecontrary proposition that Congress intended to ban bulk telephone metadata
collection immediately, despite including explicit language in the statutedelaying the effect of its prohibition of the prior program for 180 days.
Appellants argue weakly that the clarification of “relevance” is meant to end thetelephone metadata program immediately. The committee report on theFreedom Act states that “Congress’ decision to leave in place the ‘relevance’
standard for Section 501 orders should not be construed as Congress’ intent to
ratify the FISA Court’s interpretation of that term.” H. R. Rep. No. 114‐109, at 18‐
19. To explain the later effective date of §§ 101–103 provided by § 109,
Appellants argue that it is “best understood as Congress’s effort to ensure thatbulk collection would end no matter how courts ultimately understood theconcept of ‘relevance.’” Reply Brief for Appellants at 6. However, there is not
one iota of evidence that this complicated rationale was the reason for the later
effective date, nor have Appellants pointed us to any evidence to demonstratethat any member of Congress intended or believed that bulk collection would
end the day the bill was passed.2 Further, the “relevance” language remains in2

While not specifically treated as a canon of statutory interpretation, Occam’s
razor is apropos here. See, e.g., Oxford English Dictionary (3d Ed. 2004)19

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the statute as amended after the 180‐day transition period, and thus we agreewith the government that the clarification of the relevance standard, like theother amendments to the telephone metadata program, is meant to apply to thestatute after the 180‐day transition period.
Most convincingly, the government argues that the language of FISA, as
amended by the Freedom Act, demonstrates that Congress intended for the
telephone metadata program to continue during the transition period. That
Congress did not change the language of § 215 must be viewed in the context ofthe larger changes to the statute. See King v. Burwell, 135 S. Ct. at 2489. The
Freedom Act made many amendments to FISA, including banning other types ofbulk collection, such as that for pen registers and trap and trace orders,3 but
enacted no such transition provision as that in § 109 to delay the effect of otherbans on bulk collections. It makes no sense to conclude that Congress, whileproviding for the immediate effect of other amendments, also intended for bulk

(defining Occam’s razor as “[t]he principle . . . that in explaining anything, nomore assumptions should be made than are necessary.”).
3
H.R. Rep. No. 114‐109, at 21 (“[Section 201] prohibits the use of the pen registerand trap and trace device authority for bulk collection by requiring eachapplication under this section to include a specific selection term as the basis forthe use of a pen register or trap and trace device.”).
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telephone metadata collection to end immediately, by including language thatthose provisions not take effect for 180 days.
Finally, giving immediate effect to the ban on bulk telephone metadata
collection would render the language of § 109 superfluous. See TRW, 534 U.S. at
31. Appellants’ tenuous argument that the clarification of the relevance standard
was meant to take effect in the meantime, with the final ban merely sealing thedeal, is unconvincing. If Congress had intended to end bulk collection on June 2,
it would have simply said so, or at least, as in the remainder of the Freedom Act,
said nothing to the contrary. The language of § 215 as amended by the Freedom
Act indicates that Congress intended the telephone metadata program tocontinue during the transition period.
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 toauthorize it during the transitionary period. Our interpretation of § 215 as
amended by the Freedom Act leads us to conclude that, at this point, Appellants
have not shown a likelihood of success on the merits. See Winter, 555 U.S. at 20.
We therefore reject Appellants’ argument that the government should be
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enjoined on the ground that the bulk telephone metadata program continues tobe unauthorized by statute.
III.

Constitutional Issues
Appellants argue that if we decide, as we now have, that Congress allowed

the telephone metadata program to continue during the 180‐day transition
period, we must reach the “vexing” constitutional issues we earlier avoided:
whether § 215 violates Appellants’ rights under the Fourth and First
Amendments to the Constitution. The question posed by Appellants invokes oneof 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 anissue on which the Supreme Court’s jurisprudence is in some turmoil.”4 Clapper,
785 F.3d at 821. Whatever we might ultimately conclude about the Constitution’s
4

Appellants contend that the seizure of their telephone records violates theirreasonable expectation of privacy. Katz v. United States, 389 U.S. 347 (1967). The
government invokes the third‐party doctrine of Smith v. Maryland, 442 U.S. 735,
743–44, to assert that Appellants have no privacy rights in the records, because
telephone metadata is voluntarily turned over to third‐party phone providers.
While we noted earlier that “in today’s technologically based world, it is virtually
impossible for an ordinary citizen to avoid creating metadata about himself on aregular basis simply by conducting his ordinary affairs,” Clapper, 785 F.3d at 794,
we need not decide today the relationship between changing expectations ofprivacy and third‐party providers.
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demands in such a novel and contentious area, it is, at a minimum, difficult toconclude 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 todismantle the program in a way that heeds national security concerns. We agreewith the government that we ought not meddle with Congress’s considereddecision 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.5
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 constitutionalityof the demised program would be fruitless.
Appellants reanimate their earlier arguments without heed to thedrastically different context in which they now arise. The question is not whether
The Supreme Court declined to resolve a similar question in United States v.
Jones, 132 S. Ct. 945, 951–53 (2012), deciding the issue presented on a technicaltrespass theory rather than deciding whether the use of modern technology
required a change in existing doctrine regarding expectations of privacy.
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Congress may constitutionally authorize this type of bulk data collectionindefinitely, but whether Congress may, in dismantling a program of this type,authorize a transitional period with a clear end point. Allowing the program toremain in place for the short period that remains at issue is the prudent course.
Such a transitional period would likely have been appropriate even had we held
§ 215 unconstitutional in our earlier decision in the instant matter.6
Congress has decided, after nearly two years of debate, that this type ofdata collection shall not be authorized in the future. An abrupt end to theprogram would be contrary to the public interest in effective surveillance ofterrorist threats, and Congress thus provided a 180‐day transition period. Under
the circumstances, we will defer to that reasonable decision.
CONCLUSION
Congress reacted to growing privacy concerns by passing the Freedom Act
and ending the bulk telephone metadata collection program, and transitioning to
a new targeted surveillance program aimed at protecting the United States fromforeign terrorism. What if any legal challenges arise from the new system have6

Indeed, Appellants themselves did not seek relief until nearly one third of theperiod had elapsed, and only after we had raised the question of mootness andsolicited further briefing.
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yet to be seen. Congress has balanced privacy and national security by providing
for a 180‐day transition period, a decision that it is uniquely suited to make.
Congress’s decision to do so should be respected.
For the foregoing reasons, we conclude that § 215 authorizes the telephone
metadata collection program for the period of 180 days from the Freedom Act’s
enactment, as part of a larger move to dismantle the program. We decline toreach the constitutional issues, and deny a preliminary injunction at this time, as
the effect would be limited to the time before November 29, when the nature of
the harm complained of by Appellants will change, and would require resolving
momentous Constitutional issues. We do not address whether Appellants’claims will become moot on November 29, and leave this, and all otherremaining questions, to the district court in the first instance. Accordingly, we
DENY the motion for a preliminary injunction and REMAND the matter for
further proceedings in the district court consistent with this opinion and ourprior opinion in this case.

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