Federal Judges Diverge On The Constitutionality of N.S.A.’s Metadata Collection

Nicholas Fortuna, January 2, 2014.

In the last three weeks, two federal judges differed widely on the constitutionality and effectiveness of the National Security Agency program that collects data on virtually every call made to, from or within the United States. The N.S.A.’s bulk telephony metadata collection program was found to be constitutional in the Case ACLU v. Clapper, decided by federal Judge William H. Pauly III in New York. This decision comes a mere 11 days after federal Judge Richard J. Leon in Washington decided Klayman v. Obama and found the program unconstitutional, calling it “almost Orwellian.” Judge Leon stated that the government failed to make the case that the program is needed to protect the nation. He wrote: “The government does not cite a single instance in which analysis of N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.” Judge Pauley reached the opposite conclusion on the value of the program and every other significant question before him that was likewise decided by Judge Leon. Judge Pauly emphasized that logically the program could be valuable in certain circumstances and saw where it would have been useful in situations that occurred prior to its creation.

The mechanics of how the program operated was not at issue. The information collected consists of metadata, such as information about what phone numbers were used to make and receive calls, when the calls took place and how long they lasted. The metadata obtained does not include any information about the content of the calls, or names, addresses, or financial information of any party to the calls according to the government. The N.S.A. has been collecting this data for seven years and may retain it for up to five years. The metadata may only be used for counterterrorism purposes. A secret court created by Congress called the Foreign Intelligence Surveillance Court oversees the program. The court is made up of 13 District Court Judges assigned by the Chief Judge of the U.S. Supreme Court.

N.S.A. analysts access the records through queries using “identifiers,” such as telephone numbers associated with terrorist activities. An identifier used to start a query is called a “seed.” To comply with minimization procedures in place, a query using a seed is limited to records within three “hops” from the seed. For example, if it starts with a telephone number as the first seed, the first “hop” will include all phone numbers that the first number has called or received in the last five years. The second hop will include all phone numbers that each of the phone numbers found in the first hop made or received in the last five years. Similarly, the third hop will include all phone numbers found in the second hop called or received in the last five years. Once the universe of numbers is captured for a particular seed, trained N.S.A. analysts use targeted intelligence gathering techniques to determine if there are any possible terrorist related communications. The question each Judge addressed was whether the program violates the Fourth Amendment.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” In order to physically intrude on a constitutionally protected area, the government must have probable cause that evidence of wrongdoing will be found. This case does not involve a physical intrusion so Judge Leon framed the issue as “whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with metadata of hundreds of millions of other citizens without particularized suspicion of wrongdoing, retains all metadata for five years, and then queries, analyzes, and investigates the data…” Judge Leon found that there is an expectation of privacy in the metadata collected and that a Fourth Amendment search has occurred. Further, such search is likely unreasonable and therefore unconstitutional.

Conversely, Judge Pauly stated there was no legitimate expectation of privacy in telephony metadata created by third parties. In reaching his determination, Judge Pauly relied on U.S. Supreme Court decision in Smith v. Maryland (1979), which arguably is factually different enough from the current case that the reasoning in Smith should not apply. Smith arose from a robbery investigation of an individual by the Baltimore police, where as here, the NSA is obtaining records of all calls on an ongoing basis made to and from the United States. Without a warrant, the Baltimore police requested that the telephone company install a device, known as a pen register, which recorded the numbers dialed from Smith’s home for a limited period of time. The Supreme Court held in that case individuals have no “legitimate expectation of privacy” regarding the numbers they dial because they knowingly give the information to telephone companies when they dial the number. Using the same reasoning, Judge Pauly concluded no Fourth Amendment search is implicated by N.S.A.’s metadata collection program because the information collected was voluntarily turned over to third parties- telephone companies – and therefore did not violate the constitution.

Both decisions are being appealed to their relevant Circuit Courts of Appeals.  If the split continues, it is likely the U.S. Supreme Court will have to weigh in and decide the constitutionality of the program.