The United States District Court for the District of Columbia rendered a decision today in a case called Klayman v. Obama. It’s sixty-eight pages long and it’d be pretty dense stuff for most non-laywers. You can read the news that it was a kidney punch to the government, but I break down the law for you here because I think there’s something a bit deeper going on than “the government lost.”
Here’s some takeaways:
1. The plaintiff is not particularly important.
The actual plaintiff is a conservative activist lawyer named Larry Klayman. At one time he was involved with a group called Judicial Watch that got famous for a number of things movement conservatives found pleasurable and movement liberals found irritating. Now he’s on his own.
But so what? What matters is that he subscribes to Verizon Wireless, which as we now know periodically dumped its metadata to the NSA under compulsion of the government to do so. That, and Klayman had the stones to actually bring the lawsuit. A substantially similar claim was filed about one week after claimants case, by the ACLU, in federal court in New York City. That case has not yet reached as definitive a point as this.
That the ACLU and a conservative activist lately from Judicial Watch should converge upon the same goals and the same outrages is an indication that perhaps we have transcended partisanship in our need to balance security and liberty. And there’s no doubt that this debate must happen in the courts rather than in Congress.
2. The facts were never really in dispute.
How could they be? All of the facts that are alleged in the case came from one or more of the Edward Snowden leaks. Traitor or hero, no one has been able to demonstrate that Snowden is a liar.
The primary focus of the opinion was on the bulk metadata collection initiative by which the government compiled lists of basically every phone call made, from which number to which number, how long the calls lasted, and from where and to where the calls were placed. And, the government has by now conceded something which it had previously denied: this program captures data relating to telephone calls that both originated from within the United States and terminated within the United States.
These were rendered searchable by way of various programs and techniques remarkably similar to the way any Internet user would conduct a Google search. Further, it was conceded that beginning in 2009, the government deviated from instructions given by the Foreign Intelligence Surveillance Court, in some cases on a systematic basis.
After the secret court find out about this, it ordered that the meta-data could be searched only after seeking prior approval from the court on a case-by-case basis for a six-month period as sort of a “sanction.” This was the first I had heard of that, although that may be my fault.
3. The government had good reason to think it would win.
This conforms to something called a “pen register,” which had previously been found to lack any kind of privacy privilege, and therefore beyond the scope of the Fourth Amendment, in a prior case called Smith v. Maryland (1979) 442 U.S. 735. That case involved a woman who had received a series of obscene phone calls; law enforcement put a “pen register” on her phone for just shy of two weeks to see who called her. The pen registered consisted of a list of all phone numbers that called the victim’s number, and the duration of the calls, which were used to identify the defendant.
Since precedent had established that no warrant was necessary for the government to request a pen register from a telecommunications provider, it was no doubt thought that no warrant or other judicial oversight was necessary to compile what amounts to a very large pen register of telecommunications metadata.
While the government insisted it has no information concerning the content of communications monitored through the “Bulk Telephony Metadata Program,” it also acknowledged that the program began in May 2006 and continues to the present.
More important, and as underlined in the opinion, the NSA is empowered to conduct queries using identifier such as telephone numbers or other search terms the entire database this may be done without seeking the prior approval of a judicial officer. Rather, a proposed search, based on a “seed, “is approved by one of 22 managerial-level officials of the National Security Agency who decide internally if there is a “reasonable, articulable suspicion “that the ‘seed’ is associated with one or more of a specified list of several known terrorist organizations.
4. Times change.
The beating heart of the opinion starts at page 43, with a recital of the basic reasoning of Smith: the defendant in that case had no reasonable expectation of privacy in the numbers which he dialed from his phone at home, because those numbers had to be transmitted through the telephone company. “Everybody knows” that phone companies keep their own records of individual telephone calls, therefore, the defendant had no reasonable expectation of privacy that the phone company would not have this information. Since there was no expectation of privacy, no warrant was needed to access the pen register showing that calls have been made at particular times and lasted for particular durations.
There was some discussion of how the pen register was put in place before information was gathered, and it lasted only thirteen days. The NSA metadata is analyzed retrospectively, and generally goes back for five years. While the pen register in Smith was put in place to apprehend a specific criminal, the NSA appears intent to continue gathering this data and using it until the United States stops combating terrorism, “which realistically could be forever!” (Slip op. at 47.)
A. It’s a world of cell phones
But the real issue comes when Judge Leon writes “Nor could the Court in 1979 have ever imagined how the citizens of 2013 would interact with their phones.” (Slip opinion at pages 46 through 47). Unlike the targeted information sought on a prospective basis in the Smith case, the program under analysis today involves an indiscriminate dump of all data accumulated on an ongoing basis:
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 from companies to operate what is effectively a joint intelligence gathering operation with the government.
The technology available in 1979 was substantially less advanced than it is today. The pen register in the 1970’s was gathered on analog equipment, was several hundred listings long, and was analyzed by hand. Collecting the metadata for millions of telephone calls and scanning them for matches on suspect numbers, correlated with other matches on other suspected numbers in a matter of ten or fewer seconds would have “the stuff of science fiction.” But today, we have come to take such incredibly powerful search technology for granted.
Of course, there is also the permeation of these devices into our lives. In 1979 telephone usage remained a matter of some importance due to its rarity. I have living memories of seeing receptionists shush visitors to businesses by way of indicating they were on the phone “long distance,” and the in-person people respected this and deferred. Fax machines were still primitive, as Telex machines were used to transmit documents more frequently at lightning-fast rates of 400 baud. Electronic mail was at best a novelty. People out and about needing to communicate with others elsewhere had to search for public pay telephones, if you can even concieve of such a thing today. In 1979, if I recall correctly, you could still make a local call from such a public utility for a dime.
Now, of course, a person of even modest means has ready access to telecommunications. Most people who have above modest means own their own cellular telephones, telephones used not only to communicate by voice, but also with direct text messages and to access the Internet. And payphones have gone the way of the dodo.
B. Does ubiquity of use change the quality of metadata?
The result of this ubiquity of telephone use, is that it would not take tremendous effort on the part of someone who wished to do so to reconstruct significant amounts of information about a person based only on the metadata. This pervasiveness of information enables the metadata, admittedly qualitatively similar to the metadata that would have been gathered in 1979, to be used to reconstruct substantially greater information about a person’s economic, family, political, professional, and other Internet associations. In short, if you can see who I call and when, you can probably figure out quite a lot about me.
That’s really the crux of the opinion. Do you believe that the pervasiveness of all this electronic communication has created a more or a less private world? Do you have a greater or a lesser expectation of privacy regarding this information?
Most people seem to not give the matter whole lot of serious thought. What does seem clear though is that when one considers the volume and duration of the government’s data gathering effort, it gives one pause. In that pause lies the contemporary expectation of privacy — an expectation that the opinion dares suggest has increased, rather than diminished, over time.
5. If you’re not going to get a warrant, at least get something to show for your efforts.
Having determined that there is a reasonable expectation of privacy, and therefore that a search is taking place when the NSA conducts one of these inquiries, the next question is whether that search is reasonable. But here, the opinion enters its homestretch. After all, to be reasonable under the fourth amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. Chandler v. Miller, 520 US 305, 313 (1997). While the dragnet type searches described here might be defended if used on an occasional basis, there’s little doubt that what is going on is systematic, a matter of policy implemented into routine practice.
It is here that the most remarkable piece of the opinion is found. While the government insisted that the Bulk Telephony Metadata Program exists to identify terrorist operatives and prevent terrorist attacks, the government did not identify a single instance when it had actually done so:
The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped in imminent attack, or otherwise aided the government in achieving any objective that was time sensitive in nature. In fact, none of the three “recent episodes” cited by the government that supposedly “illustrate the role that telephony metadata analysis can play” in preventing and protecting against terrorist attacks “involve any apparent urgency.”
As I’ve opined in the past, the best parts of a judicial opinion can be found in the footnotes: at footnote 65, we see that the government was given the opportunity to present additional potentially classified evidence of some success of this program to the Court in camera, but chose not to do so.
With the Court finding an expectation of privacy violated without any kind of judicial oversight, and no trophies to attribute to the program to illustrate good cause, the result was as you’ve read in the headlines already — a kidney-punch loss to the government.
6. And what did the plaintiffs win?
Nothing, yet. The decision is stayed pending appeal. But if the decision is ultimately affirmed, presumably by the Supreme Court for that is where the matter appears inevitably headed, the plaintiffs will win a guarantee that their telephone numbers will not be included in any future NSA searches. How exactly that is to happen the Court did not order, saying it was up to the government to figure this out, but that it had better get a solution lined up and ready to go in the event of an eventual loss. Whether that would create an untenable problem resulting from a multiplicity of other similar suits from other people wanting out of the database was left for future cases to address.
7. Balancing security and privacy vexes us. We’re terribly vexed.
Privacy rights are significantly more ambiguous then either privacy advocates or security advocates would have them be portrayed. Individuals voluntarily forsake their privacy rights for corporations with which they choose to do business. And there’s both danger and opportunity in that fact. But the government is a different story altogether. A corporation might sue you, it might take away a product or a service upon which you’ve become reliant. But it cannot incarcerate you. And that’s why the government playing with our private information should give us greater pause.
The disturbing part of today’s opinion is the ease with which Judge Leon sidesteps the Smith v. Maryland case. The qualitative data described there is functionally at the same data that is collected by the NSA in the contemporary program. The data today is significantly more pervasive, and subject to significantly more powerful search and storage technology, than it was in 1979 — but it’s still phone numbers, times of day, durations, physical locations. Today’s opinion suggests that the quantitative accumulation of this data, combined with the facility with which it may be analyzed, renders that information qualitatively different than it was in the past.
I’m not sure if that’s right, one way or the other. It’s still the same data: what number was called, when the call was placed, how long the call took. But then, I’m not so sure that I agree with the Smith case in the first place. Seems to me that Smith should have been decided along the lines of the victim consenting to a tap of her own phone. A different matter altogether to base the opinion on the notion that defendant had no expectation of privacy in his own phone usage.
Who owns that information anyway? Smith said that the phone company owns it, not the user. Consider: the U.S. Post Office transmits mail from one place to another, and it could if it wanted keep track of who sends letters to whom. Wouldn’t a compilation of that sort, perhaps assembled by an army of Winston Smiths in cubicles scribbling down return and delivery addresses, significantly implicate the privacy interests of the people writing and reading those letters?
What is lacking in so much of this government data collection and analysis is meaningful judicial oversight. The thing about police searches a physical premises, or even computers, is that it is usually done either with a warrant, or with actual exigent circumstances impelling the need for an immediate search which is later confirmed.
While the opinion does raise my opinion of the FISA court, in that it describes an interactive process and a degree of skepticism in that Court’s oversight of the NSA’s data gathering activities, it also illustrates how that system breaks down, and how the executive gathers information sometimes in open defiance of judicial guidelines. And the FISA Court is not a forum in which adversaries clash; the judges must play the role of adversaries to the government before they ultimately give the government some, if not all, of what it came asking for.
There should be no doubt that the government will appeal; it pretty much has to. The likelihood of the subject matter of this case making it for Supreme Court review is high to the point of inevitability. The D.C. Circuit may well reverse this decision.
8. What really got done
The government has been put on the legal defensive. The government should be on the defensive. The government should be in the position of needing to justify its actions to a skeptical citizenry and searching questions from the bench. People ought to be able to point at something the government has done and point out how it infringes upon their basic rights, and to have those rights vindicated when the government’s explanations for its actions are found wanting.
That, after all, is why we have courts in the first place.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.