Is NSA’s Surveillance Legal? Yes or No?

By Hayes Hunt and Joshua Ruby

telephoneoperator.jpgSix months after Edward Snowden began leaking information about the National Security Agency’s secret data collection methods, two federal judges – one in Washington, D.C. and one in New York – have reached opposite conclusions about whether one NSA program unlawfully searches the phone records of millions of Americans.  The two diverging decisions in Klayman v. Obama (that the program is unlawful) and in American Civil Liberties Union v. Clapper (that the program is lawful) not only create legal uncertainty for the NSA’s controversial data collection initiatives but also show how hard it is to resolve questions of privacy and the proper scope of government surveillance in the face of new technology and new collection methods.  And the presence of these two thorough, well-reasoned, and diverging decisions makes it much more likely that the Supreme Court will ultimately resolve the NSA program’s legality.

In June, Snowden revealed, and the Guardian newspaper published, a classified order of the Foreign Intelligence Surveillance Court (FISC).  The order authorized Verizon to turn over all “telephony metadata” – information like number dialed, date, and time – for all telephone calls with at least one party in the United States for which it had records.  Although the order expired after 90 days, the Government soon admitted that the order was a small part of a much larger program, one which began in 2006 with the aim of collecting and analyzing the telephony metadata from all major wireless carriers for use in terrorism investigations.

In Klayman, several plaintiffs – including Freedom Watch founder Larry Klayman – challenged the program in federal district court in Washington.  And in ACLU v. Clapper, the ACLU, its New York affiliate, and several related organizations filed a similar suit in federal court in New York.  Both sets of plaintiffs argued that (1) the program exceeds the terms of section 215 of the USA PATRIOT Act, the statutory authority permitting the FISC to grant such orders, and (2) that the program constitutes an unconstitutional search in violation of the Fourth Amendment; the ACLU also asserted that the program violated its First Amendment rights.  Each set of plaintiffs soon moved for a preliminary injunction shutting the program down pending the outcome of the case; in ACLU v. Clapper, the Government also moved to dismiss. NSA.jpg

In both proceedings, the Government countered the plaintiffs’ constitutional arguments by relying on Smith v. Maryland, 442 U.S. 735 (1979).  In Smith, the Supreme Court held that the installation of a pen register – a device which records the date, time and number dialed of outgoing telephone calls – does not constitute a “search” governed by the Fourth Amendment.  The Court reasoned that, because telephone service providers keep similar records of the calls they handle, a caller has no reasonable expectation of privacy in the information, and the Government’s procurement of the information is not a search in the constitutional sense. 

The NSA’s program, the Government argued, was little more than a straightforward application of the Smith rule that the Fourth Amendment does not protect information like the date, time and number dialed of a telephone call.  This reasoning had frequently persuaded FISC in the years since Smith, and FISC had accordingly often ordered the production of telephony metadata to the Government. 

In Klayman, Judge Leon broke with FISC and rejected the Government’s argument.  The minimal surveillance directed at one individual in Smith, he concluded, paled in comparison to the NSA’s extensive program, dating back to 2006 and still ongoing, dedicated to collecting and analyzing telephony metadata.  But more importantly, he noted, modern society has changed radically as mobile telephones advanced technologically and went from being common to ubiquitous.  These changes mean that the NSA can harvest more metadata from each mobile telephone and that that data will reveal much more about the owner of that telephone than the simple pen register at issue in Smith.  He concluded that the plaintiffs had a reasonable expectation of privacy in the data the NSA collects and would likely prevail on their Fourth Amendment claim.

publicprivate.jpgJudge Leon acknowledged that his decision conflicts with many rulings of FISC, as well as with orders of several other federal district judges who have rejected legal challenges to the NSA program since its disclosure.  Recognizing the unsettled legal terrain, Judge Leon granted the plaintiffs’ requested preliminary injunction shutting down the NSA program but also stayed his order while the Government pursues an appeal.

In ACLU v. Clapper, Judge William H. Pauley decided the same dispute with the opposite result, that the NSA’s collection of telephony metadata survived constitutional scrutiny.  Beginning by invoking the possibility that the NSA program could have helped prevent the September 11, 2001 attacks, Judge Pauley’s opinion is a full-throated defense of the NSA’s collection methods.

On the plaintiffs Fourth Amendment claim, Judge Pauley concluded that Smith rendered the NSA program legally permissible.  He pointedly disputed the plaintiffs’ premise by concluding that the call records at issue belonged not to the plaintiffs, but to Verizon and other telecommunications service providers.  Because the telephony metadata the NSA collected belonged not to the plaintiffs but to the telecommunications providers, he reasoned, Smith, as well as numerous other cases addressing government acquisition of information voluntarily provided to the authorities or other third parties, meant that the plaintiffs had no reasonable expectation of privacy in the telephony metadata related to their telephone calls.  Accordingly, the NSA’s collection of the telephone metadata did not constitute a “search” within the meaning of the Fourth Amendment and crosses no constitutional boundaries.

Judge Pauley also expressly disagreed with Judge Leon’s reasoning that the changed character of a modern citizen’s interactions with his or her mobile telephone alters the constitutional analysis of the NSA program.  While acknowledging that mobile telephones can do more and collect vastly more data than ever before, Judge Pauley noted that the NSA program at issue here solely involves the collection of metadata related to simple, old-fashioned telephone calls.  So viewed, no novel constitutional issues arise, and the program is lawful.

The decisions create substantial legal uncertainty for the NSA program.  And although the plaintiffs in ACLU v. Clapper and the Government in Klayman will probably pursue an appeal,  the presence of these two well-reasoned cases for opposite results makes it likely that the various federal courts of appeals which will hear these and other, similar cases will also reach different results.  In that event, the Supreme Court will almost certainly have the last word on the legality of the NSA program.



Joshua N. Ruby joined Cozen O’Connor in 2013 as an associate in the firm’s Litigation Section.  Joshua practices out of the firm’s Philadelphia office. Joshua graduated from Harvard Law School, magna cum laude, and the University of Chicago with a Bachelor of Arts in history with honors, and English language and literature. Joshua completed clerkships with the Honorable Chief Judge J. Curtis Joyner, U.S. District Court, Eastern District of Pennsylvania, the Honorable Peter C. Dorsey, senior judge, U.S. District Court, District of Connecticut, and Associate Justice David A. Mills, Massachusetts Appeals Court.

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About the Editor
Hayes Hunt concentrates his practice in the representation of individuals, corporations and executives in a wide variety of federal and state criminal law and regulatory enforcement matters as well as complex civil litigation. Hayes is a partner in the firm's Commercial Litigation Department as well as its Criminal Defense and Governmental Investigations Group.
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