Tuesday, December 17, 2013

NSA decision, Klayman v. Obama

The exciting decision from the Federal District Court for the District of Columbia, Judge Richard Leon presiding, just came out, and it's quite powerful. You can see the full text at Scribd. Judge Leon writes a strongly worded opinion, that is rather narrow in actual scope, but contains a good deal of important reasoning. There are 2 cases joined here, so there are 2 petitioners. The judge is only ruling on petitioners' requests for an injunction against the NSA continuing to gather metadata about their telephone calls as part of their Bulk Telephony Metadata Program. Judge Leon further rules that the NSA must destroy any information they have already collected of this nature about the two petitioners.

However, in coming to this ruling, Judge Leon distinguishes the 1979 decision, Smith v. Maryland, 442 U.S. 735 which the FISC Court has ruled "squarely control[s]" on the issue of "telephone service provider metadata." Indeed, the government has so heavily relied on courts accepting the Smith case as controlling, that they have considered the issue as completely settled. In Smith, the police installed a pen register on a telephone without a warrant, after a robbery victim complained to them that she was receiving obscene and threatening phone calls. The FISC court accepted the Smith precedent in a decision that has been redacted and published at their website, In Re An Application of the [FBI] for an Order Requiring the Production of Tangible Things from [Redacted], BR13-109 at 6-9, (FISC, Aug. 29, 2013). Leon, however, writes that a short term, very limited pen register is a far cry from the long-running, wide-ranging modern technology being deployed n the Bulk Telephony Metadata Program, and furthermore notes that the Supreme Court recently called the Smith decision into some doubt in United States v. Jones, 132 U.S. 945 (2012), (attaching a GPS device to a vehicle) a 5-4 decision. Judge Leon notes that the Supreme Court took the Jones decision as an opportunity to revisit the Smith decision, because there was an earlier warrantless tracking device opinion, United States v. Knotts, 460 U.S. 276 (1983) which could have been used as precedent.

Judge Leon uses strong language about the NSA datagathering program, which enlists the nation's telecommunications giants (and, incidentally, the Internet search and social networking providers as well) to
"operate what is effectively a joint intelligence-gathering operation with the Government." Klayman, at 48. ... 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. ... 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. By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to "store such records and efficiently mine them for information years into the future." Jones, 132 S.Ct. at 956 (Sotomayor, J., concurring). ... (Klayman at 49)

And finally and most importantly, not only is the Government's ability to collect, store and analyze phone data greater now than it was in 1979, but the nature and quantity of the information contained in people's telephone metadata is much greater as well.... But the ubiquity of phones has dramatically altered the quantity of information now available and, more importantly, what that information can tell the Government about people's lives. ... Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic, a vibrant and constantly updating picture of the person's life. ... (Klayman at 50, 54)

In sum, the Smith pen register and the ongoing NSA Bulk Telephone Metadata Program have so many significant distinctions between them that I cannot navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones. (Klayman, at 55)

[Judge Leon next examines the likelihood that the petitioners will succeed in showing that the searches are unreasonable. He does a very careful survey of the Supreme Court Fourth Amendment jurisprudence, and concludes:] ... To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet. (Klayman at 58)

The Government asserts that the Bulk Telephony Metadata Program serves the "programmatic purpose" of "identifying unknown terrorist operatives and preventing terrorist attacks." Govt.'s Opp'n at 51 -- an interest that everyone, including this Court, agrees is "of the highest order of magnitude," In re Directives Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F3d 1004, 1012 (FISA Ct. Rev, 2008). ... A closer examination of the record, however, reveals that the Government's interest is a bit more nuanced -- it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. ... (Klayman, at 59-60)

Yet, turning to the efficiency prong, 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 object that was time-sensitive in nature. In fact, none of the three "recent episodes" cited by the Government which supposedly "illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack" involved any apparent urgency. (Klayman, at 61. Judge Leon describes the 3 examples laid out by the Government in the Holley Declarations, and finds none of the three persuasive). ... Given the limited record before me ... most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than investigative tactics -- I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism ... (Klayman at 62)

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, who cautioned us to beware "the abridgement of freedom of the people by gradual and silent encroachments by those in power," would be aghast. (Klayman at 64)

[Judge Leon then considers the Government's complaint of the burdensomeness of removing the two plaintiffs from its database and that this may cause a number of other such requests, degrading the utility of the program.] ... Of course the public has no interest in saving the Government from the burdens of complying with the Constitution! ... For reasons already explained, I am not convinced ... that the NSA's database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations, and so I am certainly not convinced that the removal of two individuals from the database will "degrade" the program in any meaningful sense. (Klayman at 66)

This case is the latest chapter in the Judiciary's continuing challenge to balance the national 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 technological advances and a cell phone-centric lifestyle heretofore inconceivable. ... (Klayman at 66-67)

The image of Judge Leon decorating this post is from Suffolk Law Review's Donahue Lecture series. Judge Leon spoke at our school in 2012, about his cases on the Guantanamo detainee litigation, balancing personal liberties against national security during the war on terror. Seeing the title of his talk, which I attended, makes it doubly interesting that he heard this case on the NSA.

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