Big Brother Goes to Court…

The federal courts have begun to weigh in on the NSA surveillance techniques exposed by Edward Snowden and Glenn Greenwald. As with many instances of unsettled Constitutional law, the courts are split. The DC District Court found that the bulk collection of telephony metadata was “probably unconstitutional” and so granted Larry Klayman’s request for a preliminary injunction (stayed until a determination on the merits, however). This week, however, the US District Court for the Southern District of New York determined that the bulk collections were reasonable, related to a legitimate (indeed, the most important) government interest, and as such, did not violate the Fourth Amendment.

The two courts could not have disagreed more. Not only did they come to opposite conclusions as to the application of the Fourth Amendment, the they disagreed as to whether the district courts had jurisdiction to hear the statutory claims. Judge Leon found that the courts did not have jurisdiction to entertain the Administrative Procedure Act (APA); by contrast, Judge Pauley spent the majority of his opinion addressing the statutory claims. Thus, Klayman v. Obama reads as a majority constitutional law opinion, while ACLU v. Clapper is primarily a statutory interpretation/standing opinion.

In order to understand how each judge reached his respective decision, a brief background of the NSA program is in order. Essentially the way the NSA surveillance works is that the government stores the metadata recorded by the phone companies each and every time a phone call is made or received. From this enormous database, the NSA can search the connections between a particular phone number, up to three “hops” away. A “hop” is a contact: so, for example, if I call a phone number and the NSA thinks I am a terrorist suspect, they can see who I called, then see who each of those people called, and so forth, up to three degrees of Kevin Bacon. “Plumbing such data can reveal a rich profile of every individual as well as a comprehensive record of people’s associations with one another,” according to Judge Pauley in his opinion dismissing the ACLU’s challenge to the bulk collection.

Importantly, the stored telephony information can only be accessed in relation to a particular person or people and are supposed to only relate to foreign activity, under 50 U.C.S. 1861 (Section 215 of the PATRIOT Act). Section 1861 also requires traditional warrant requirements of “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” Judge Pauley found this, among other measures, to be reasonable oversight of the NSA.

Judge Leon, however, noted that “NSA intelligence analysts, without seeking the approval of a judicial officer, may access the records to obtain foreign intelligence information only through queries of the records using ‘identifiers,’ such as telephone numbers, associated with terrorist activity.” (Emphasis in original). Thus, in order for the database to be useful, counter-terrorism teams need to have a lead or a suspect. The database is utterly useless unless applied to individuals or groups. (This, obviously, begs the question: if Verizon and other telephone companies are storing this information – legally, as seen below – why can’t the government then request a warrant from the secret FISA court to gain the same access to only those records pertaining to the suspect).

In 1972, Congress enacted FISA (Foreign Intelligence Surveillance Act), which set up secret courts presided over by federal judges. These FISA courts are known as FISCs. When the NSA desires to search a particular phone number, it must seek out a warrant from the FISC. Then, the government may begin its surveillance and access the records. The current NSA bulk collection, however, is an order to the phone companies that demands all telephone data on an ongoing, daily basis. Judge Leon of the DC District found this troublesome – Judge Pauley did not.

Citing Smith v. Maryland, 442 U.S. 735 (1979), Judge Pauley found that, since callers have no expectation of privacy in information they freely give out to a third party, they cannot claim a violation of the Fourth Amendment. While this is based on extensive case law, it is still troubling, even if one agrees with the case law. While a search can only violate the Fourth Amendment when a person has an expectation of privacy, one can also have expectations of privacy against certain entities or people. For example, I can have an expecation of privacy from the general population in information I give my wife, doctor, or lawyer. I have an expectation of privacy in the contents of my mail, or my emails, even against employers in some situations, even though I do not have a complete expectation of privacy. I also have an expectation not to be arbitrarily searched when I am in public and an expectation that I will not be pulled over on the highway without reasonable suspicion. And, since the Fourth Amendment applied strictly to government, I may give a third party some limited information, such as bank account information, in order to effectuate a transaction, without consenting to grant the world access to my financial information. Thus, while Judge Pauley certainly bases his decision on legal grounds, the ground is not entirely constitutionally solid, especially as applied here.

Judge Leon interepreted the same precedent quite differently. Also analyzing Smith v. Maryland, 442 U.S. 735 (1979), Judge Leon delved into the facts and assumptions the U.S. Supreme Court relied on in Smith and found them to be very different than the facts confronting him here. In Smith, the police installed a pen register and used it to trace calls from Smith’s phone – Smith, in fact, was the suspect of a particular offense, which incidentally involved his making phone calls to a particular person. In order to gather evidence of the particular offense, they installed and used a pen register for a period of sevearl days.

Judge Leon – correctly, in my opinion – found that a very different question faced the courts here. In his opinion, Judge Leon asked: “When do present-day circumstances – the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith does not apply? The answer . . . is now.”

For Judge Leon, a pen register was significantly different than the bulk telephony collection. For example, the pen register in Smith only lasted for a few days and did not indefinitely store Smith’s information – the NSA collection is an on-going collection which stores the metadata forever.

Second, the program essentially turned the telecom companies into functioning intelligence agencies of the NSA. The companies have been providing information on a daily basis since 2006 – each request to continue has been approved (a total of 35 times!). “The Supreme Court . . . has long-recognized a meaningful difference between cases in which a third party collects information and then turns it over to law enforcement . . . and cases in which the government and the third party create a formalized policy under which the service provider collects information for law enforcement purposes . . ., with the latter raising Fourth Amendment concerns.”

Third, Judge Leon found the tactis employed by NSA to be “almost-Orwellian.” It was so “unlike anything that could have been conceived in 1979” that [in 1979, when Smith was decided] the technology “was, at best . . . the stuff of science fiction.” Additionally, citing to standard Fourth Amendment doctrines, he stated that the “ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility” were non-existent, since the program was intended to be (and was, until Snowden’s leak) secret.

Not only was the pen register different, but cell phones drastically change the analysis from that of Smith. “Put simply,” Judge Leon said, “people in 2013 have an entirely different relationship with their phones than they did thirty-four years ago.” Judge Leon found that those people who have grown up in the cell-phone era “might well be compared to those of the ‘refugee from a totalitarian country, unaware of this Nation’s traditions, who erroneously assume that police were continuously monitoring’ telephony metadata. Accordingly, their ‘subjective expectations could play no meaningful role in ascertaining . . . the scope of Fourth Amendment protection,” requiring an objective examination of the Fourth Amendment free from the current youth’s expectation that Big Brother is always watching. In short, Judge Leon dismissed the argument that the government could erode everyone’s expectation of privacy and then claim the ability to search everything, at any point in time, because no one had any expectation of privacy!

Judge Pauley disagreed. Finding that the phone records were the phone companies’ and not the Plaintiffs’, he found that the Plaintiffs had no expecation of privacy in them. Since there was no expectation of privacy, there could be no unreasonable search of them. Thus, no constitutional implications in the telephony search.

Also at issue was how frequently and egregiously the government abused or misused the surveillance program. Judge Leon found frequent examples of misconduct. He cited, for example, a FISC judge’s report on the “noncompliance,” citing “systematic non-compliance with FISC-ordered minimization procedures over the preceding three years [2006-2009].” The report also indicated that the NSA “repeatedly made misrepresentations and inaccurate statements about the program to the FISC judges.” Conversely, Judge Pauley found that the NSA, while human and subject to errors, had not made any egregious or bad-faith mistakes and that any mistakes that had been made had been internally corrected, or at least corrected under supervision by a FISC judge.

The judges further disagreed on how effective the surveillance program was, an important component in weighing the government’s interest. Judge Leon found that “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata colletion actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.” Judge Leon parsed each of the examples provided by the government and concluded that the bulk collection program played no part in the detection of the plots, since all of the examples involved known suspects and the metadata could easily have been discovered with a warrant involving only the suspect’s phone calls. Indeed, since the phone companies store them all, they would be readily accessible to any counter-terrorism effort. Judge Pauley, on the other hand, took the government’s examples at face value.

In response to the government’s public policy argument that obtaining warrants before receiving and searching masses of telephone metadata, Judge Leon said: “Of course, the public has no interest in saving the Government from the burdens of complying with the Constitution!” Going even further, Judge Leon said: “I am not convinced at this point in the litigation that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitve investigations, and so I am certainly not convinced that the removal of two individuals from the database will ‘degrade’ the program in any meaningful sense.” Not only was Judge Leon not convinced of the program’s efficacy, he had “little doubt that the author of our Constitution, James Madison, who cautioned us to beware the ‘abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.”

In short, the two federal courts to weigh in so far have come to two very different conclusions based on the same facts and argument. The lines are being drawn between whether it is reasonable for an individual to expect he or she has some measure of privacy from government intrusion, even where they “voluntarily” give information about themselves to a third party. Judge Leon noted a very convincing argument that people do have an expectation of privacy: if the government felt that people would find the collection of the metadata on all of their calls, both incoming and outgoing, an acceptable encroachment on their privacy, what was the necessity of keeping the program secret? The government’s entire argument, in fact, is premised on the fact that people did expect their telephony metadata to be private – if terrorists expected their call information to be stored, would the program work? Of course not. Hence, the secrecy.

While I respect Judge Pauley’s decision based on legal precedent, given the federal judiciary’s long leash on law enforcement, I believe Judge Leon took the better approach when he analyzed it from the “reasonableness” of one’s expectations of privacy. In short, it is unreasonable for the government to erode the idea of privacy by so consistently and blatantly encroaching on it, then claim that they can search anything and everything without a warrant, since people have been condititoned not to expect any privacy!

In any event, these will be two of probably many courts to weigh in and I have little doubt, given the sharp divide thus far illustrated among the district courts, that this issue will end up before the U.S. Supreme Court. We will keep you posted.

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