Outside the Beltway

Federal Judge Rules That NSA Metadata Collection Program Likely Unconstitutional

A potentially big legal setback for a big National Security Agency program.

Doug Mataconis · Monday, December 16, 2013 · 17 comments

In what amounts to a preliminary, all be it fairly wide-reaching and astonishing slap at the growth of the surveillance state under the rubric of the War On Terror, a Federal District Court Judge in Washington, D.C. has ruled a significant part of the National Security Agencies metadata collection program unconstitutional:

WASHINGTON — A Federal District Court judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, and he ordered the government to stop collecting data on two plaintiffs’ personal calls and destroy the records of their calling history.

In a 68-page ruling, Judge Richard J. Leon of the District of Columbia called the program’s technology “almost Orwellian” and suggested that James Madison, the author of the Constitution, would be “aghast” to learn that the government was encroaching on liberty in such a way.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

Judge Leon stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, a matter that he said could take some six months.

Vanee Vines, a spokeswoman for the N.S.A., had no immediate comment on the ruling by Judge Leon, a 2002 appointee of President George W. Bush.

The ruling is the first successful legal challenge brought against the program since it was revealed in June after leaks by the former N.S.A. contractor Edward J. Snowden. It was brought by several plaintiffs led by Larry Klayman, a conservative public-interest lawyer. The American Civil Liberties Union has filed a similar lawsuit in the Southern District of New York.

In a statement distributed by the journalist Glenn Greenwald, who was a recipient of leaked documents from Mr. Snowden and who wrote the first article about the bulk data collection, Mr. Snowden hailed the ruling.

“I acted on my belief that the N.S.A.’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” Mr. Snowden said. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

Though long and detailed, the ruling is not a final judgment, but rather a preliminary injunction to stop the data collection while the plaintiffs pursued the case. It turned on whether there was a substantial likelihood that they would ultimately succeed and whether they would suffer substantial harm in the meantime.

But Judge Leon left little doubt about his view.

“The question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval,” he wrote. “For the many reasons set forth above, it is significantly likely that on that day, I will answer that question in plaintiffs’ favor.”

As Lyle Denniston notes, the opinion by Judge Leon, a Bush appointee whose nomination was announced on September 10, 2001 and confirmed in February 2002, runs counter to precedent established by the top secret Federal Court set up to monitor the NSA and other intelligence agencies:

The ruling runs directly counter to a series of orders by a secret and specialized federal court, the Foreign Intelligence Surveillance Court, declaring that the telephone surveillance does not violate the Fourth Amendment.  If Judge Leon’s order withstands an appeal, and then results in a formal ban by the judge, it would be a major setback for the Obama administration’s anti-terrorism campaign.

From a legal standpoint, the most significant part of Judge Leon’s ruling was that it would undercut the most significant foundation the government has claimed for the legality of the telephone data sweeps.

He ruled that he was not bound by a 1979 Supreme Court ruling that both the Obama Administration and the secret FIS court that has approved the data sweeps have interpreted as authorizing the program.  Judge Leon said that the Supreme Court in the case of Smith v. Maryland did not deal with the communications world as it exists today, so its ruling does not directly apply to what NSA is now doing on a worldwide basis in search of terrorism information.  He found that, today, telephone and other communications companies are essentially engaged in a joint intelligence-gathering program with the federal government.

“This case,” the judge wrote, “is yet the latest chapter in the judiciary’s continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens.  The government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four-year old Supreme Court precedent, the relevance of which has been eclipsed by technology advances and a cell phone-centric lifestyle heretofore inconceivable.”

He ruled in the case of two cellphone users, who claimed that the global phone data sweeps have captured their calling activity as customers of Verizon Wireless.  Judge Leon concluded that they had an “expectation of privacy” in the records of their calls, and that they had a legal right to be in court to make their Fourth Amendment claim.

In another part of his ruling, however, the judge said he had no authority to rule on the two customers’ separate claims challenging the government’s massive programs — one of which was discontinued two years ago — to collect data on communications via the Internet rather than by telephones.

Judge Leon’s decision on the telephone data program was limited to the Fourth Amendment issue.  He said the challengers did not have a right to be in court to make their claim that the program violates the specific federal law governing foreign intelligence surveillance.

The ruling was only on a preliminary injunction, and thus the judge did not issue a final ruling that the telephone program was actually unconstitutional — only that there was a sufficient likelihood that the challenge would succeed that an order temporarily blocking it was proper.

Given that they are not Appellate Courts of any kind, Judge Leon is not bound by any of the decisions by the FISA Court that Denniston refers to. Indeed, given the fact that those rulings are all secret, it’s hard to make the case that they stand as persuasive law of any kind. However, the Supreme Court’s ruling in Smith v. Maryland is another story. In that case, the Supreme Court held that the installation of a pen register, a device capable of tracking all the numbers called by a particular telephone that is installed at a telephone company switch station rather than anywhere on the property of a potential suspect is not a search within the meaning of the Fourth Amendment, thus meaning that police do not need to get a search warrant in order to have such a device installed. As Orin Kerr notes, Leon argues that the Smith decision is not applicable because of the nature of the technology used today has changed significantly since that decision was issued in 1979, among other reasons:

Judge Leon relies on several factors to conclude that the Supreme Court’s reasoning in Smith is no longer valid:

1) In Smith v. Maryland, the surveillance occurred over just a few days and the data was not stored for long, whereas the NSA conducts long-term surveillance and could keep doing so “forever!” (emphasis in original).

2) In Smith, the government requested the phone company to install the surveillance tool, whereas in the case of the NSA, there is a cozy, long-term relationship.

3) Datamining of information obtained is better today than it was when Smith was decided.

4) Most importantly, people use phones today a lot more than they did in 1979, when Smith was decided. Back when Smith was decided, only about 90% of households had telephones. But today, almost every person has a phone. As a result, people today have an “entirely different” relationships to phones than they did in 1979. This has led to greater expectations of privacy than existed when Smith was decided, and Smith no longer applies

Because of these four factors, Judge Leon concludes, he “cannot possibly” follow the Supreme Court’s decision in Smith v. Maryland. Instead, Judge Leon concludes that individuals have a “very significant expectation of privacy” against the aggregated collection and He then turns to the next Fourth Amendment step, reasonableness, and concludes that the NSA’s bulk metadata program is unreasonable because it does not survive a cost/benefit balancing: It is invasive, and yet Judge Leon does not think the NSA telephony metadata program is sufficiently effective to satisfy the Fourth Amendment

It’s not every day that you see a Federal District Court Judge go to such lengths to essentially work his way around a Supreme Court decision, especially one that’s over three decades old and has been the basis for other related rulings related to the 4th Amendment and communications in the years since it was handed down. As a matter of law, the Smith case is a reflection of the fact that it is generally the case that data in the hands of third parties is not considered to be entitled to 4th Amendment protection because there is not reasonable expectation of privacy on the part of an individual with respect to such data. For that reason, police conducting an investigation can get their hands on phone records for individuals and businesses without having to obtain a warrant. This also applies to other data in the hands of third parties, unless there are specific Federal or State laws that require the police to obtain warrants or provide some justification for such requests before the information has to be provided.

In this case, though, the Judge is essentially arguing that the expectation of privacy that average Americans have regarding their phones and the data associated with that phone has changed significantly since the Supreme Court dealt with the issue in 1979. Given the prevalence of services that operate in the “cloud” today, there’s an argument in favor of Judge Leon’s argument that shouldn’t be easily dismissed. Why should it matter for Fourth Amendment purposes, for example, if someone stories their email on their hard drive, which clearly would require police to obtain a warrant to gain access to, and whether they store it on the servers of Google, Microsoft, or any of there other online email services? With specific regard to the metadata in these case, there would also seem to be a good argument in favor of the argument that individuals have a reasonable expectation of privacy in the phone call and other data associated with their use of their cell phone or smart phone. After all, today that metadata includes not just a record of calls and received and made, but also data relating to text messages, web sites visited, financial transactions, meetings and other information stored on a calendar app like the one provided by Google, messages and posts on social media sites, including messages intended to be private, and other such information. These phones, in other words, have become an extension of people’s private lives to the point where the law needs to re-examine the question of what constitutes a “reasonable expectation of privacy” in the modern world. By issuing this decision, Judge Leon has essentially challenged his superiors to re-examine the Smith case in the light of how much he world has changed in the last thirty-four years.

The immediate impact of this decision is essentially nothing since Judge Leon has stayed the effect of his ruling pending appeal. However, this opinion is likely to lead to other similar lawsuits being filed by other Plaintiffs, and it will no doubt be cited as persuasive authority in an effort to persuade other Federal Judges to rule against the NSA. So, stay tuned.

Here’s the opinion:

Klayman et al v. Obama et al Opinion by dmataconis