Posted by on December 17, 2013 in Blog

By Isaac Levey
Legal Fellow

The controversial National Security Agency (NSA) program that collects Americans’ phone records received its first public judicial setback yesterday, with a federal court finding that it probably violates the United States Constitution. The ruling by the U.S. District Court for the District of Columbia concluded that the program most likely violated the Fourth Amendment, which prohibits the government from conducting “unreasonable searches and seizures.” The government will almost certainly appeal, and Judge Richard J. Leon’s order to stop collection won’t take effect until the appellate process is complete.

This program was exposed on June 5, the first revelation in the cascade of leaks from former NSA contractor Edward Snowden that has gone on over the past several months. It allows the NSA, acting under the authority of Section 215 of the USA PATRIOT Act, to collect “telephony metadata”: the records from telecommunications companies of calls to and from their subscribers. As we’ve explained before, this doesn’t involve actually listening in on phone calls, but it does involve, at the very least, knowing who called whom; when; and how long the calls lasted. That breach of privacy is not trivial, especially since the NSA has access to phone records dating back five years. You can paint an extremely revealing portrait of someone’s life if you know exactly who she spoke to, when, and for how long, in every phone conversation she had for the last five years.

To be sure, the program only collects all that data – the information is only actually revealed to NSA analysts when it matches their search, or “query.” For NSA to “query” a phone number and see what numbers it has connected with, they must have “reasonable articulable suspicion” (RAS) that that phone number is related in some way with a terrorist or foreign power. But the NSA also searches anyone within three degrees, or “hops,” from the initial target. To explain the vast dragnet this creates, let’s take an example from Judge Leon’s opinion. NSA is investigating Mr. X, whom there’s good reason to think is connected with a terrorist organization. Mr. X’s phone number is queried, and they find he spoke to 100 different people on the phone over the last five years (this number is very conservative: most of us have probably spoken to far more than 100 people over the phone since 2008). So the NSA queries the numbers of everyone ever in contact with Mr. X, and that’s hop 1. For hop 2, they query everyone who spoke to the people in hop 1. If each of them talked to 100 different people, we now have 10,000 people whose phone number has been searched. And for hop 3, we query everyone in touch with the 10,000 from hop 2. If each has contacted 100 people, that’s one million people whose phone records are inspected. The NSA, in investigating Mr. X, just looked at all the call records for over a million different people. Yes, there may be some duplicates, but at the same time that number of 100 over five years is very conservative. What if, as Judge Leon suggests, Mr. X had called Domino’s Pizza? Care to take a guess how many people order from a busy Domino’s in a big city over five years? It is obvious that this program will result in an enormous amount of Americans’ private data being searched, and that only the tiniest fraction of those individuals whose numbers are queried or whose conversations are revealed will actually be suspected of any kind of criminal wrongdoing.

How could this possibly be legal? you ask. Since when can the government just take everyone’s private information for no reason? Don’t they need a warrant, or something? Remarkably, there are many people who believe the answer to that question is no, and they include just about all the judges on the secret Foreign Intelligence Surveillance Court (FISC) that oversees these programs. The argument is that the Fourth Amendment doesn’t apply to things that people understand aren’t private, and that Americans have no “reasonable expectation of privacy” in their phone records. The government’s legal holy grail is a 1979 Supreme Court decision called Smith v. Maryland, which upheld the warrantless use of a “pen register” to record the phone numbers dialed by a man who was suspected of making obscene phone calls (the device was installed for about a day and a half). The Supreme Court held that Americans know their phone companies have phone records, and that while the government does need a warrant to listen to phone calls, they don’t need a warrant just to see what numbers you dialed.

In the three decades since, the government has used the precedent of Smith – the use of a pen register on one person, detecting only outgoing calls, for a day and a half – to justify the collection of literally every Americans’ phone records, revealing every single person they’ve talked to over five years. At long last, Judge Leon yesterday became the first federal judge to reject that argument. A district court judge can’t overrule or disobey a Supreme Court decision, but he can say that the facts have changed so much that the old decision just doesn’t apply to the new case: “In Smith, the Supreme Court was actually considering whether local police could collect one person’s phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation,” Judge Leon wrote. “The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction.” Only the Supreme Court can decide what place the doctrine of Smith v. Maryland has in today’s world, but it’s not intellectually dishonest to say that the short-term use of a pen register is a very, very different infringement of privacy than the collection of all Americans’ phone records forever and ever.

As a final thought, this case helps illustrate the nonpartisan nature of this controversy. The plaintiff in this case, Larry Klayman, is a conservative activist and certifiable nutjob who has sued both Hillary Clinton and his own mother, and who earlier this year stood outside the White House and told President Obama to “put the Qur’an down [and] come out with his hands up.” Yet other challenges to the program have come from groups that are usually more liberal, such as the American Civil Liberties Union and National Association of Criminal Defense Lawyers. Judge Leon was appointed by President George W. Bush and is generally thought to be conservative; Judge Mary McLaughlin, who recently issued a FISC order upholding this program, was appointed by President Clinton. The bipartisan USA Freedom Act, which would end this program, has almost an equal number of Democratic and Republican cosponsors in the House of Representatives; it was introduced by the very liberal Sen. Patrick Leahy (D-VT) and very conservative Rep. James Sensenbrenner (R-WI). And at least two of the new judges that President Obama finally decided to force onto the U.S. Court of Appeals for the D.C. Circuit would probably vote to uphold this ruling if they got the chance.

The outcome of this case is not settled, nor do we know how the other cases challenging this program will come out. But Judge Leon’s decision is a good reminder that despite the government’s “understandable zeal to protect our homeland,” that’s not its only job. Our elected leaders need to remember our constitutional rights too.

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