Case Watch: A Step Forward for Constitutional Challenge to NSA Surveillance

In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.

A United States federal judge ruled on Monday, December 16, that a government mass data surveillance program is most likely unconstitutional under the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures.

This case, Klayman v. Obama, is the first federal court decision dealing with the National Security Agency surveillance program that became public in June 2013 after Edward Snowden disclosed classified NSA documents to the media.

Describing the NSA program as “almost-Orwellian technology,” Judge Richard Leon of the U.S. district court for the District of Columbia barred the government from collecting the phone data of the plaintiffs (Larry Klayman and Charles Strange) and required the government to destroy any previously collected data. The court stayed its order pending the government’s appeal, however, which could take six months or more.

As the case detailed, the U.S. government has been systematically collecting so-called metadata from phone companies for more than seven years (metadata covers information such as numbers called, when they occurred and the duration of calls, rather than the content of the call).

Phone companies have been required to produce this metadata by the Foreign Intelligence Surveillance Court (FISC), which has authorized the NSA program from 2006 onward. The court's classified decisions have mostly been unavailable to the public until recently.

The government contended that the information gathering program serves important counterterrorism purposes in identifying and preventing terrorist attacks. According to the government, the metadata collection allows investigation of “past connections and chains of communication” and “increases the NSA’s ability to rapidly detect persons affiliated with the identified foreign terrorist organizations.” 

With this metadata in hand, the NSA analyzes the data out to three “hops.” The first hop looks at the metadata from the original number, including all incoming and outgoing calls from the last five years; the second hop retrieves metadata from all numbers gathered in the first hop from the last five years; and the third hop includes all the metadata gathered in the second hop from the last five years.

But as Judge Leon explained, a single search could, in a conservative estimate, trigger the inclusion of at least 1,000,000 phone numbers. He noted further that if one of the numbers called happened to be a Domino’s pizza in New York City, the second hop “would therefore most likely result in exponential growth in the scope of the query and lead to millions of records being captured by the third hop.”

The plaintiffs claimed that the NSA’s metadata gathering program violated their constitutional rights under the Fourth Amendment. (They also put forward a statutory claim that the court rejected.) To assess this claim, the court first addressed the plaintiffs’ expectation of privacy in their cell phone records and then whether a search of those records would be reasonable.

The government relied heavily on the 1979 case Smith v. Maryland, in which the Supreme Court found that a criminal suspect under short-term police surveillance did not have a reasonable expectation of privacy in the phone numbers he called. Judge Leon distinguished the NSA program from that case, explaining that the surveillance in Smith “in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives.” He therefore accepted that the plaintiffs had a reasonable expectation of privacy when it came to the metadata that the NSA was collecting.

The court then moved to the second part of the analysis and held that there was a significant likelihood that the plaintiffs would succeed in showing that the phone record searches are unreasonable. To make this determination, the court balanced the privacy interests of the plaintiffs with the governmental interests at stake. Judge Leon commented that the information that can be obtained from phones is entirely different than it was 34 years ago and reveals “a vibrant and constantly updating picture of the person’s life”. Notably, the court found that “these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable.”

The government, trying to tip the privacy-security balance in its favor, argued that the metadata program would allow faster tracking of potential terrorists than other methods. Judge Leon noted, however, “the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database is faster than any other investigative tactics”. The FBI Assistant Director, he added, even confirmed that “bulk metadata analysis only ‘sometimes provides information earlier than the FBI’s other investigative methods,’” an admission that the court characterized in a footnote as providing “candor… as refreshing as it is rare.”

The court ultimately ruled in favor of the plaintiffs and while doing so stressed the importance of assuring the same privacy rights that existed when the Fourth Amendment was created. Describing the NSA program, Judge Leon observed:

“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. Indeed, I have little doubt that the author of our Constitution, James Madison… would be aghast.”

The court did, however, decide to delay its order pending appeal, citing “the significant national security interests at stake in this case.”

Klayman v. Obama is the latest in a series of cases dealing with the intelligence gathering practices of U.S. government. A previous case challenging the program was dismissed in February 2013 before the Snowden documents were revealed, as the plaintiffs could not prove then that they had been targets of surveillance.

Though the Klayman ruling only applies to these plaintiffs, it demonstrates that others could succeed in similar pending cases. For example, an ACLU case on the Fourth and First Amendments is currently being litigated in New York and an Electronic Frontier Foundation case in California deals with the First Amendment rights of organizations. Additionally, the case provides material for members of Congress already pushing for legislative changes to the NSA program.

For additional commentary on this decision, see posts by David Cole, Benjamin Wittes, Steve Vladeck, and Orin Kerr.

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