It takes a legal leap to do it, but U.S. District Court Judge Richard Leon ruled today that the NSA’s dragnet metadata collection program is likely a violation of the Fourth Amendment (the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”). It’s only ‘likely’ because this is a ruling on a request for a preliminary injunction, but there’s no doubt about the drift even on a very rushed read.
To get there Judge Leon has to take several steps, at least one of which will likely be controversial.
1. Judge Leon finds (some of) the plaintiffs have standing. I don’t think this will be the controversial part, although I commend the text around footnote 36, and especially footnote 36, to anyone who has doubts.
2. Judge Leon holds that the APA review is implicitly precluded by FISA and by the Patriot Act. Generally, courts do not find implied preclusion of the APA, and I never like it, but I do not think this will be the controversial part of this opinion.
3. Judge Leon holds that the collection and analysis of telephone metadata is a search. I think this obviously is the right answer on first principles. Doctrine makes it harder to reach that conclusion than it should. For starters, there’s the problem of the pen register precedents — the Supreme Court has said that installing and using a pen registers is not a search, and they collect pretty much the same data as does the NSA — just one line at a time, and for limited intervals. Doctrine does not make it easy to say that the scope and scale of the NSA’s activities are so transformative as to make Smith v. Maryland, 442 US 735 (1979) (pen register not a 4th Amendment search) inapplicable. But that’s what Judge Leon more or less does. He also relies, somewhat less persuasively, on the close relationship between the government and the carriers as far exceeding any reasonable expectation of erosion of privacy. Slightly more persuasive is the argument that technological change — the ways in which the data can be used — make it time to rethink Smith as does the change in the way we use phones — one mobile per person, instead of one fixed line phone in 90% of homes when Smith was decided. I think the most one can say here is that if the Supreme Court wants to revisit Smith as five Justices may have signaled in United States v. Jones, 132 S. Ct. 945 (2012) [Smith and Jones, what great names for privacy and mass surveillance cases!], then here’s the chance to do so.
4. Judge Leon rejects the ‘special needs’ exception to the Fourth Amendment. I think this exception is a mistake on principle, but again it’s doctrine. But here the doctrine is less helpful to the NSA, especially as it appears that it introduced no evidence — despite being invited to do so — as to the efficacy or utility of the bulk meta-date program. That might change, though, if the trial ever gets to the merits.
Incidentally, all the other trial courts that have addressed the bulk telephony metadata collection program ruled that it was legal.
Judge Leon stayed his own order pending appeal, which is certain. How timely that Obama’s new nominees to the D.C. Circuit will be on duty for the all-too-likely en banc!
This is a really helpful read of the situation, thanks.
I’ve long wondered about less conventional approaches to establish standing in cases like this.
For example, does blanket surveillance undermine 5th Amendment protections against self-incrimination? Does this undermine Miranda rights? These concerns seem particularly relevant in light of the current use of “parallel construction” among law enforcement and prosecuting attorneys working with surveillance data distributed by intelligence fusion centers.
https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-laundering
Another 5th Amendment concern: does this amount to using private property for government use without just compensation? They’re essentially commandeering your cellphone for military intelligence purposes.
A 3rd Amendment concern: does this type of surveillance amount to quartering soldiers in private homes? This seems like less of a stretch if, today, we’re calling money “speech.”
And all of these concerns raise broader due process concerns.
Of some import in all this is the physical nature of what the NSA is capable of doing and how that (may) differs from Smith.
At the time of Smith, a police agency had to get the phone company to install the register (do the recording). The nature of phone systems was such that the metadata was entirely different from the voice transmission. The clicks of the rotary dialer would register on switches, which the pen register would record. The voice transmission was not recorded, nor could it be on such a device. There was pretty much zero risk of a pen register “recording” anything outside of what it was intended to record. Hence the treatment of it by SCOTUS as a non-Constitutional issue.
It’s just not like that anymore. All the data streams are mixed and one CAN, given the right tech (which the Government has). Additionally, much of it is in the form of radio transmissions (cell phones are radios, pure and simple) which can be picked up by anyone with a receiver and decoder (you can’t legally buy a civilian radio with cell phone frequencies available, and now (they didn’t used to be) they are encoded anyway).
The NSA has been accused of monitoring phone data by A). Pulling it out of the air (no way to guard against that really), and B). secretly tapping into transmission lines. (they have ALSO used the traditional method of getting the info from the phone companies.) In A and B, one can easily (again, given the tech) include more than just metadata. Evidence so far suggests strongly that the NSA does not consider that an important issue as they are only – if it’s collected at all *wink, wink* – going to STORE that data (until they decide not to just store it. Again, COMPLETELY different from a Smith case pen register.
This is actually a really hard issue. We want to be safe from national harm, and we consider it our Government’s Constitutional duty to do what it can in that regard, but to do so in the modern world NECESSARILY circumvents the Constitution. While following the clear intent of the Constitution leaves us blinded to much of what may be going on. As a strident Constitutionalist, I admit that it simply is incompatible with this aspect of modern tech and a really see no way to make it so. I do not think it is as simple as taking Smith and a few other cases and applying them, but that’s all our Courts can really do. But I also don’t think that it is proper to just give a pass to Government every time it uses the terrorism password.
Perhaps the solution is to make the modern NSA techniques as close to a 60’s pen register as possible: Data is only kept at telephone company. It is not turned over without a warrant (whatever the standard). It is not stored long-term with out a warrant (whatever the reason). It is absolutely NOT gathered outside of the clearly defined system for gathering it (no tapping in to undersea trunk lines, etc.). But this isn;t really the best solution for national security…
There’s no easy answer here, and no serious discussion coming from either side of the aisle.
> Perhaps the solution is to make the modern NSA techniques as close to a 60′s pen register as possible
What’s not obvious about metadata collection is that is is actually more valuable than content.
Think about it this way: call content is highly equivocal. People speak in shorthand, refer to events that happen off the phone, people speak in cant, idioms, informally, and misspeak.
Metadata is always unequivocal, and that’s what makes it so valuable. If it wasn’t valuable, they wouldn’t be collecting it. If you do any banking over the phone, for example, you’re entering in PIN numbers and account numbers through the keypad counts as metadata — that’s pretty valuable (and unequivocal) data!
As far as guarding against different types of intercepts, the NSA will get call data if it wants to. There are all sorts of “compromising emanations” that are susceptible to interception via numerous means — leaking rf signals, fluctuations in a computer’s power draw, variations in the flicker of LED indicator lights, etc.
The real problem with the NSA is that this type of institution is fundamentally at odds with an open society.
Oh, I agree 100%.
But the fact is, I doubt the NSA will be disbanded and even if it was, someone else (FBI, CIA, etc) would just start doing the same thing. The technology to snoop like the NSA exists and can’t be put back into the bottle.
So the fundamental solution is for Congress to apply very heavy and exacting restrictions on what NSA is allowed to do to carry out its mission AND must demand by statute absolute access to all aspects of WHAT NSA does. It must be clear and stated by statute with little interpretive wiggle room.
It should never be the case that on part of Government – and Administrative agency – can do whatever it likes and thumb its nose at both the Congress and the Courts (and quite likely the WH in this case too, which is apparently being run by children at the moment). The natural tendency to give great defence to Agencies should be curtailed by statute in the case of NSA, specifically because it is naturally incompatible with a free society.
Of course we live with a populace that seems perfectly willing to “shelter in place” when told to by Government and cow-tows to the modern militarized police state, so good luck getting enough people to even care – much less Congress.
A preliminary injunction is a request by the verizon customers of the court stating that they think there is an ongoing harm to them that cannot be fixed monetarily. Such an injunction protects a party during the course of a lawsuit from further harm. To get one, they have to prove, among other things, that there is a good chance that they will win the lawsuit.
The thing is, the injunction will be appealed (called an interlocutory appeal fyi, since it’s not a final judgment on the case) before the case progresses even further. UNfortunatel,y Judge Leon is kind of out on a branch compared to other judges in thinking that simple suggestion of infringement of a privacy right is sufficient for standing and a PI.