A federal judge in Washington, DC ruled on December 16 that the National Security Agency’s far-reaching surveillance practices probably violated the United States Constitution. In striking down the surveillance, the court in Klayman v. Obama stated, “I have 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.”
The case arises from the June 2013 revelations in the British newspaper, the Guardian, which reported leaks from former NSA contract employee Edward Snowden. Those revelations generated international news coverage over the scope of the NSA’s surveillance activities. Judge Richard Leon summarized the program in his ruling, confirming that the phone calls of nearly every American are at risk for the government’s wide net.
How the NSA Program Works
The Bulk Telephony Metadata Program has been in place since 2006. Private telecommunication companies, including Verizon, produce their metadata records for the government on a daily basis. The metadata consists of “what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted.” The metadata does not include the substance of the phone calls. The NSA consolidates the metadata from the various phone companies into one database and it may retain the records for up to five years. NSA analysts use that database “to draw connections across telecommunication service providers between numbers reasonably suspected to be associated with terrorist activity and with other, unknown numbers.” Without having to seek a court order, NSA analysts can access the records to obtain foreign intelligence through queries of the records using telephone numbers associated with terrorist activity.
Judge Leon provided a plain-English tutorial on how the three-stage (or “hop”) program works. Once an analyst starts with a “seed” phone number, such as (123) 456-7890, he can then access all the phone numbers that (123) 456-7890 called or received calls from in the last five years. Assuming that (123) 456-7890 called or received calls from 100 phone numbers, under the second hop, the program then accesses all the phone numbers that each of those 100 phone numbers called or received calls from over a 5-year period, i.e., 100 numbers for each one of the first 100 numbers, or 10,000 numbers. Once those numbers are collected, the third hop kicks in. The program then accesses all the phone numbers from each of the 10,000 numbers in the second hop. If each of the 10,000 numbers from the second hop called or received calls from 100 numbers, the third hop brings us to 1 million phone numbers. All from an initial phone number. But the total number may exceed 1 million. As Judge Leon explained, “[i]t is possible to arrive at a query result in the millions within three hops while using even conservative numbers…. After all, if the average person in the United States does not call or receive calls from 100 unique phone numbers in one year, what about over a five-year period?” New York City residents could easily fall within the program’s “spiderweb-like reach” if, for example, they call Domino’s Pizza, which can receive hundreds of calls per week. The program conceivably can capture millions of phone records.
Making matters worse, Judge Leon noted, is how frequently the government oversteps the rules governing surveillance programs. An obscure but powerful national security court, the Foreign Intelligence Surveillance Court, approves surveillance orders, often with minimization procedures. However, in 2009, for example, “the Government reported to the FISC that the NSA had improperly used an ‘alert list’ of identifiers to search the bulk telephony metadata, which was composed of identifiers that had not been approved.” A federal judge then ruled that “the NSA had engaged in ‘systemic noncompliance’ with FISC-ordered minimization procedures over the proceeding three years…and had also repeatedly made misrepresentations and inaccurate statements about this to the FISC judges.” Even after the court imposed a six-month “sanction” requiring the NSA to comply with special rules to avoid similar problems in the future, “the Government apparently has had further compliance problems relating to its collection programs in subsequent years.”
New Ground Under The Fourth Amendment
The case before Judge Leon challenges the NSA surveillance program under the Fourth Amendment to the U.S. Constitution, which prohibits “unreasonable” searches and seizures. The court delivered the Fourth Amendment analysis in two parts: is there a “search” under the Fourth Amendment and, if so, is that search unreasonable?
As a trial court judge, Judge Leon must follow precedents set down by the higher courts, including the DC Court of Appeals and the United States Supreme Court. The problem is that the most relevant case dates to 1979, Smith v. Maryland, which at first glance would support the government’s position that the NSA surveillance program is legal. In Smith, the police used a pen register, or phone call tracking device, to identify the phone number of a man who was accused of making harassing phone calls to a robbery victim. Although the police did not obtain a warrant before tracking the phone calls, the Supreme Court held that the caller “had no reasonable expectation of privacy in the numbers dialed from his phone because he voluntarily transmitted them to his phone company and because it is generally known that phone companies keep such information in their business records.” While the government, in defending the NSA surveillance, argued that Smith supports its position, Judge Leon declined to follow Smith, essentially concluding that it’s not 1979 anymore.
Judge Leon’s decision is a good case study in how judges handle court precedents that might affect the outcome of the case. Most Supreme Court rulings do not cover all conceivable fact patterns and they can be distinguished in later cases on that basis. On the other hand, Supreme Court pronouncements cannot be ignored completely, as that Court has the final say on how the Constitution is interpreted. Judge Leon framed the issue this way: “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 34 years ago that a precedent like Smith does not apply? The answer, unfortunately for the Government, is now.
“The pen register case in 1979 is quite unlike the NSA surveillance case for several reasons. First, the pen register was operational for only a few days and it is unlikely the government retained those limited phone records when the case ended. ‘Second, the relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and the telecom companies.’ While the pen register was a relatively limited act of surveillance, under the NSA program, the telecommunications providers give the government call records on a daily basis as the result of an ‘all-encompassing, indiscriminate dump of phone metadata that the NSA now receives…. It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.’ Third, ‘the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.’ No one could have imagined a program like this in 1979.”
In further brushing the Smith precedent aside, Judge Leon noted that “the nature and quality of the information contained in people’s telephony is much greater.” In 1979, 72 million U.S. homes had telephones. In December 2012, there were 326 million mobile subscriber connections in the United States. Of course, these are not just cell phones but cameras, texting devices, music players, and computers. “The ubiquity of phones had dramatically altered the quantity of information that is now available and, more importantly, what that information call tell the Government about people’s lives…. Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago.” Calls and communications are made today that could not have been made in 1979. The metadata from each person’s phone “reflects a wealth of detail about her familial political, professional, religious, and sexual associations” that could not have been gleaned from a data collection in 1979. Judge Leon essentially found that the Smith precedent is outdated for purposes of determining whether the public has a reasonable expectation of privacy in their telephonic metadata. While Smith may remain good law in allowing the police to trace phone calls from a single phone line, it cannot apply in the context of modern telecommunications when the government is trying to collect metadata on the scale of current NSA programs.
Finally, in ruling in the plaintiffs’ favor and finding that they have a significant chance of striking down the NSA program, Judge Leon noted that the program’s broad sweep does not square with the government’s interests in collecting the data. While the government claims that it needs this information to quickly identify unknown terrorist operatives and prevent terrorist attacks, “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive.” While the government could have given the court classified information in secret to support its claim that this information actually thwarted a terrorist attack, it did not do so. In sum, Judge Leon wrote, “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. Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”
The decision in Klayman grants the plaintiff’s application to preliminarily enjoin the NSA surveillance program. This means the plaintiff essentially wins the case prior to trial. While Judge Leon has stayed enforcement of his ruling pending appeal, the tide is already turning against the indiscriminate NSA surveillance. Only a few days after Judge Leon issued his ruling, a task force appointed by President Obama recommended that the surveillance program be sharply curtailed and that the government obtain a court order in order to access the metadata for queries and data mining. The public is also outraged at the scope of government surveillance. So is the international community, which has also been spied on by the U.S. government.
What Will The Supreme Court Do?
Unless President Obama scales back the NSA surveillance program and moots out this constitutional challenge, this case is likely headed for the Supreme Court, which will have to decide whether Judge Leon appropriately declined to apply the 1979 Smith precedent in this context. Supreme Court intervention is all the more likely now that a federal judge in New York City rejected Judge Leon’s analysis and instead ruled in December 2013 that the NSA program is constitutional and that the Smith precedent means that, “individuals have no ‘legitimate expectation of privacy’ regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties.”
While civil liberties advocates recognize that conservatives dominate the Supreme Court, they should bear in mind that, in 2012, the Court held that the government’s placement of a GPS tracking device on a criminal suspect’s vehicle without his knowledge constituted a search under the Fourth Amendment. Conservative Justice Antonin Scalia wrote that decision. In concurring with Justice Scalia’s ruling, Justice Sotomayor employed language that would apply to the NSA surveillance program: “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility’.”
“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may ‘alter the relationship between citizen and government in a way that is inimical to democratic society’.”
Justice Sotomayor’s logic mirrors Judge Leon’s. It also comports with the reality of modern communications. The constitutional framers did not anticipate the technological revolution that has developed over the last few decades. They certainly did not anticipate that a young NSA employee—through electronic means—could blow the lid off an extensive surveillance program that might collect the telephonic metadata of nearly every American. While it was drafted in the 18th century, the language of the Fourth Amendment—prohibiting unreasonable searches and seizures—is sufficiently flexible to solve modern-day problems. The challenge for the federal courts is how to bring the Fourth Amendment into the 21st Century.
Stephen Bergstein is a civil rights attorney in upstate New York.