Congress was able to address the concerns presented by the mass acquisition of metadata by the
National Security Agency by creating a more nuanced statute than that which the NSA had
claimed as authority for its actions. See ACLU v. Clapper, 804 F.3d 617, 620 (2d Cir. 2015),
discussing the USA FREEDOM Act of 2015, Pub. L. No. 114-23, 129 Stat. 268 (2015). I fully
expect that the Justice Department will respond to this decision by seeking legislation to overrule
it. If it does so, Congress would do well to take the occasion to address thoughtfully and
dispassionately the suitability of many of the statute’s provisions to serving contemporary needs.
Although I believe that we have reached the correct result as a matter of interpreting the statute
before us, I believe even more strongly that the statute should be revised, with a view to
maintaining and strengthening the Act’s privacy protections, rationalizing and modernizing the
provisions permitting law enforcement access to stored electronic communications and other
data where compelling interests warrant it, and clarifying the international reach of those
provisions after carefully balancing the needs of law enforcement (particularly in investigations
addressing the most serious kinds of transnational crime) against the interests of other sovereign
nations.
* * *
For these reasons, I concur in the result, but without any illusion that the result should
even be regarded as a rational policy outcome, let alone celebrated as a milestone in protecting
privacy.
20
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