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Metadata and the Fourth Amendment

The American National Security Agency’s (NSA) bulk metadata collection program has been the subject of considerable scrutiny ever since The Guardian revealed the program’s existence last summer as part of its reporting on leaks from former NSA contractor Edward Snowden. Perhaps the most salient legal issue regarding the metadata program is whether it violates the U.S. Constitution’s Fourth Amendment. Two recent federal district court decisions—Klayman v Obama and American Civil Liberties Union v Clapper—have reached conflicting conclusions on this point.

The Program

The program allows the NSA to access metadata associated with telephone calls, including the number called from, the number called to, and the date and time of the call. In its brief for American Civil Liberties Union v. Clapper, the ACLU argued that the program raises significant privacy concerns, for metadata can “reveal a person’s religion, political associations, use of a telephone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes.”

The program operates under the supervision of the Foreign Intelligence Surveillance Court (FISC). If the court approves an application, the NSA may access the metadata for individuals within three degrees of removal, or three “hops”, of a suspected terrorist. FISC proceedings are not adversarial, for the court hears only the government’s reasons for requesting access to the data. Critics have argued that the court’s approval of over 99% of government applications demonstrates that it does not provide adequate oversight. In a letter to the Senate Judiciary Committee, the court responded to these accusations by noting that this figure

reflect[s] only the number of final applications submitted to and acted on by the Court. These statistics do not reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them.

The court’s statement further noted that 24.4% of applications “ultimately involved substantive changes to the information provided by the government … as a result of Court inquiry or action.” Given the secretive nature of the court, it is difficult to objectively assess the effectiveness of its oversight.

The Fourth Amendment

The Fourth Amendment of the U.S. Constitution states that

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Among the requirements for a successful Fourth Amendment claim is establishing that a reasonable expectation of privacy was violated. On this point, the most relevant precedent to the metadata cases is 1979’s Smith v Maryland [Smith], in which the U.S. Supreme Court held that individuals have no reasonable expectation of privacy regarding the telephone numbers they call, for that information is freely provided to telephone companies and it is generally known that telephone companies keep this information in their records. In the 2011 Supreme Court case United States v Jones, multiple justices expressed skepticism about Smith’s enduring validity. Nevertheless, Smith has never been explicitly overturned. The two metadata decisions were sharply divided on the enduring applicability of this precedent.

Klayman v Obama

On December 16, Richard J. Leon of the Federal District Court for the District of Columbia ruled that the metadata collection program violates the Fourth Amendment, stating

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.

Much of the debate over the NSA program has centered on its efficacy. To that end, Judge Leon noted that

[t]he 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 in nature.

This skepticism echoes the President’s Review Group on Intelligence and Communications Technologies.

Regarding whether there is a reasonable expectation of privacy regarding metadata, Judge Leon held that Smith is not applicable for the Smith court could not “have ever imagined how the citizens of 2013 would interact with their phones.” He pointed to four main reasons why Smith is not applicable.

First, the pen register that was used in Smith to collect phone numbers was operational for only two weeks, whereas the metadata program stores five years’ worth of information. Second, the relationship between the police and the phone company in Smith was nowhere near as intertwined as the relationship that has developed between the U.S. government and telecom companies over the past seven years. Third, the “almost-Orwellian” technology the government is using to store and analyze metadata is unlike anything that the Supreme Court could have imagined in 1979. Fourth, the nature and quantity of information contained in metadata is far greater than in 1979.

On this last point, Judge Leon noted that while “what metadata is has not changed over time … the ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives.” Consequently, he held that Americans “have a very significant expectation of privacy in an aggregated collection of their telephone metadata … and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation.”

American Civil Liberties Union v Clapper 

On December 27, Judge William H. Pauley III came to the opposite conclusion. Contrary to Judge Leon’s belief that the metadata program has not been effective, Judge Pauley argued that the program could potentially have stopped the 9/11 attacks. However, the crux of his determination was that the Smith precedent applies and that no Fourth Amendment claim can be made out for Americans have no reasonable expectation of privacy regarding the metadata related to their phone calls.

While acknowledging Judge Leon’s argument that individuals today have an entirely different relationship with telephones than they did when Smith was decided, Judge Pauley noted that “their relationship with their telecommunications providers has not changed.” Further, Judge Pauley emphasized that “this case only concerns [telephones’] use as telephones.” Consequently, though modern telephones are essentially handheld computers, this fact should not be considered when assessing the constitutionality of a program that only collects data from their use as telephones. Further, Judge Pauley argued that the mere fact that far more telephone calls are made today is not enough to distinguish this case from Smith: “Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.”

The Path Forward

Though Klayman remains a significant victory for opponents of the metadata program, this victory was doubtless tempered by ACLU v. Clapper. Still, these cases will not be the final word on the program’s constitutionality. Senator Rand Paul, the leader of the Republican Party’s libertarian anti-war wing, is currently mounting a class action against the NSA. As these and other Fourth Amendment challenges make their way through the courts, it appears likely that there will be a circuit split; the final word on the constitutionality of the metadata program seems destined to be the Supreme Court’s. Nevertheless, there have been significant developments outside the courts.

On January 17, President Barack Obama outlined proposed reforms to NSA surveillance programs, including the metadata program. Though there was, unsurprisingly, no concession that the metadata program is unconstitutional, the reforms included altering the FISC system by making it adversarial, and limiting the access of data to individuals within two hops of suspected terrorists. There is much debate over whether these measures are sufficient, though it is widely agreed that they are positive steps.

Further, the Republican National Committee has passed a resolution that, among other things, states that “the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution.” This refers not only to the metadata program, but also to other NSA programs revealed as part of the Snowden leaks, such as PRISM. It is entirely possible that by the time the Supreme Court rules on the programs’ constitutionality, they will already have been significantly reformed.

[filed: Constitutional Law Privacy Telecommunications]

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