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Will the Supreme Court Review the NSA’s Telephony Metadata Program?

By on January 2, 2014 8:47 pm in Mosaic Theory of the Fourth Amendment, NSA

In the wake of the dueling opinions by Judges Leon and Pauley about the NSA’s Section 215 telephony metadata program, a lot of commentators are assuming that the issue is heading to the Supreme Court. If a federal circuit court rules that the program is unconstitutional and survives en banc review, then I agree that Supreme Court review is likely.  Invalidating a major federal program will usually get the Justices’ attention. But let’s assume that the Second Circuit upholds Judge Pauley’s decision, and the DC Circuit reverses Judge Leon. Will the Supreme Court intervene if the Second and DC Circuits uphold the program?

We don’t know, of course, as it all depends on what might get four votes to grant cert. It’s a discretionary call, so it’s hard to predict. At the same time, I think a lot of commentators overestimate the chances that the Supreme Court would step in. It’s certainly possible, but it’s not at all  a sure thing. Here are five reasons why the Supreme Court might not review the Section 215 cases:

1) Section 215 sunsets on June 1, 2015. On that date, the statutory authority for the bulk telephony program will end. If the White House wants to continue the program beyond that date, it will have to convince Congress to expressly approve bulk collection. Alternatively, Congress might not be willing to go along, and will only be willing to approve a modified program or no program at all. Either way, the sunsetting of Section 215 will trigger a major Congressional debate on the desirability of bulk collection that will either reject it or accept it in modified form.

A cert petition in the Section 215 cases from Judges Pauley and/or Leon would reach the Supreme Court as this debate was either ongoing or recently [...]

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Judge Pauley of the SDNY Upholds NSA Section 215 Program

By on December 27, 2013 12:34 pm in NSA

The opinion is here, and it’s pretty much the opposite of Judge Leon’s recent opinion. Judge Pauley rules that the Section 215 telephony metadata program is lawful both as a matter of statutory and constitutional law. Based on our experience with lower court rulings on Obamacare, I gather that Pauley’s opinion will draw only a small amount of attention relative to Judge Leon’s contrary ruling. But it’s an interesting contrast, both on the legal merits and as a matter of judicial rhetoric. [...]

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Liberals and Conservatives Switch Positions on NSA Surveillance

By on December 24, 2013 3:53 am in Kerr's Law, NSA

A recent Washington Post poll asked, “How concerned are you, if at all, about the collection and use of your personal information by the National Security Agency?” I was interested in the different degree of concern among political liberals and political conservatives. Here are the results among political liberals:

  • 26% very concerned
  • 26% somewhat concerned
  • 26% not too concerned
  • 21% not at all concerned

On the other hand, here are the results among political conservatives:

  • 48% very concerned
  • 29% somewhat concerned
  • 12% not too concerned
  • 9% not at all concerned

It’s an interesting reversal from 2006, when the President was a Republican instead of a Democrat. Back then, a Pew poll found 75% of Republicans approved of NSA surveillance but only 37% of Democrats approved. Granted, there are some differences between what we know the NSA was up to then and now. The polling questions are not identical, and party affiliation is not the same as ideology. Still, it’s an interesting shift. Kerr’s Law in action, I suppose. [...]

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Another Problem With Judge Leon’s NSA Opinion: Absolute vs. Relative Measurements and Fourth Amendment Reasonableness

By on December 17, 2013 11:23 pm in Fourth Amendment, NSA

The more I re-read Judge Leon’s opinion in Klayman v. Obama, the more I am struck by how many parts of the opinion strike me as strange, off-key, or just wrong. This post will focus on an aspect of the opinion that has been ignored so far: Fourth Amendment reasonableness. In particular, I hope to explain why I think Judge Leon’s approach to assessing the reasonableness of the NSA program conflicts with established Supreme Court precedent.

First, some context. According to the Supreme Court, reasonableness requires a cost/benefit analysis: “Whether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Samson v. California, 547 U.S. 843, 848 (2006). That’s the general test, and Judge Leon recognizes it. But I want to focus here on a specific issue: The methodology for analyzing the latter question, the efficacy of the government’s step.

Consider two different approaches. First, a court could make an absolute measurement. That is, the court could measure how much that step advances the government’s interest as compared to no step at all. Alternatively, a court could make a relative measurement. That is, the court could measure how much that step advances the government’s interest as compared to alternative methods that the government could conduct to try to collect the same information.

The Supreme Court cases that I am aware of have endorsed absolute measurement and rejected relative measurement. For example, in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Court considered the reasonableness of an immigration checkpoint set up along a highway. The defendants tried to argue that the checkpoint did not advance the [...]

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Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?

By on December 17, 2013 3:05 am in Fourth Amendment, Mosaic Theory of the Fourth Amendment, NSA

Here’s a thought experiment. Let’s assume that when DOJ appeals Judge Leon’s opinion in Klayman v. Obama, the DC Circuit does not reverse on the procedural issues. Instead, on appeal the DC Circuit takes precedent seriously and tries to square the NSA surveillance program with United States v. Maynard and its mosaic theory on the merits of the Fourth Amendment. If that happens, how should the court rule? That is, how should the NSA program fare under the Maynard mosaic theory?

In some sense, there is no real answer to the question. Maynard‘s mosaic theory is novel, strange, and yet also strikingly vague. Still, I thought it would be useful to imagine what issues the DC Circuit might encounter if it tries to fairly apply the Maynard precedent on appeal. There are two key issues. First, does the mosaic theory apply to the kind of data collection at issue in the NSA program? And second, if the theory applies generally, how does it apply specifically to the facts of the Klayman case?

(1) Does the Mosaic Theory Apply to the Data at Issue in the NSA Program?

The mosaic theory developed by the DC Circuit in Maynard reasoned that long-term surveillance can allow the government to collect and analyze so much information about a person that eventually the government can develop a complete picture of their lives. When that happens, a Fourth Amendment “search” is deemed to have occurred. In Maynard, the government installed a GPS device on the car that the defendant drove and monitored it for 28 days. The GPS recorded the location of the car every few seconds. On those facts, the DC Circuit concluded that a search had occurred because the GPS surveillance “reveal[ed] an intimate picture of the subject’s life that [...]

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Preliminary Thoughts on Judge Leon’s Opinion

By on December 16, 2013 6:54 pm in Fourth Amendment, NSA

In this post, I’ll offer a few thoughts on Judge Leon’s remarkable opinion on NSA surveillance. Unfortunately, my time was limited, so I have to offer a more brief analysis than I would normally like to do. Here are a few thoughts for now, with more to come later if time permits.

(1) Distinguishing Smith v. Maryland

Judge Leon’s first and most fundamental move is to distinguish Smith v. Maryland, the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone. I found Judge Leon’s argument on this point not only unpersuasive, but quite plainly so. I realize that a district court judge can’t just announce that he thinks a Supreme Court decision was wrongly decided. But there are plausible ways to write an opinion distinguishing Smith and implausible ways to do so, and Judge Leon’s opinion struck me as a surprisingly weak effort.

Here’s why. Judge Leon says that the most important ground for distinguishing Smith is that we have a fundamentally different relationship with telephones today than existed in 1979. Today’s cell phones are not just phones, Judge Leon emphasizes. They are computers with functionality wholly apart from telephony. Today’s cell phones are maps, cameras, text messaging machines, and even lighters that can be held up at rock concerts. As a result, Judge Leon argues, Americans have an “entirely different” relationship to phones than they did in 1979. And Judge Leon therefore cannot possibly follow a decision from the pre-cell phone era.

I find this argument deeply unpersuasive. Most obviously, why does it matter that today’s phones are combined in a single device with other functions? The NSA’s program is not collecting information about the use of those other functions. It is only collecting the same information that was collected in Smith [...]

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David Kris Publishes the Best Defense (By Far) of the Lawfulness of the NSA’s Telephony Metadata Program

By on September 30, 2013 1:38 am in NSA

Lawfare has posted a hugely helpful essay for those wanting to understand the NSA’s telephony metadata program and to read the best legal defense of that program: David S. Kris, On the Bulk Collection of Tangible Things (.pdf, 67 pages). Kris was the head of DOJ’s National Security Division from 2009 to 2011, and he is a co-author of the field’s essential treatise, National Security Investigations and Prosecutions.

Kris’s legal defense of the telephony metadata program runs laps around both the Administration’s white paper and the FISC’s recent opinion. As regular readers know, I have been pretty critical of the previous defenses of the lawfulness of the program. Kris’s analysis (especially pages 17-29) provides a lot more food for thought. It’s going to take me a while to work through his argument, and especially to read the additional cases he cites, so at this point I can’t say whether I am persuaded. But it’s essential reading for those interested in the legality of the program. [...]

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My (Mostly Critical) Thoughts on the August 2013 FISC Opinion on Section 215

By on September 17, 2013 7:39 pm in NSA, Uncategorized

The FISC has released an August 2013 opinion, authored by Judge Claire Eagan, on the lawfulness of the NSA’s telephony metadata program. I thought part of the opinion was persuasive but most of it was unpersuasive. Here are my thoughts on the opinion in the order that the issues appear in the opinion, which end up going from the less critical to the more critical:

1 )The Fourth Amendment analysis (pages 6-9) is short but correct based on current Fourth Amendment law. For a more detailed analysis of my own that reaches the same result, see here.

2) On pages 12-15, Judge Eagan compares FISA’s Section 215 with what she describes as its criminal law analog, 18 U.S.C. 2703(d) of the Stored Communications Act. I found this section a bit strange. I’m not entirely sure of the point of the comparison, but my sense is that it is designed to bolster the conclusion that Congress intentionally created Section 215 to have more ex post review and less ex ante review than its criminal law cousins — thus suggesting a Congressional endorsement of the “get everything, look through it later” nature of the telephony metadata program.

If that’s the argument, though, it strikes me as weak. If you’re looking through the surveillance laws for comparisons between criminal law and national security law cousins, the obvious comparison would be between 18 U.S.C. 2703 and 18 U.S.C. 2709, the National Security Letter authority, not between 18 U.S.C. 2703 and Section 215. On its face, Section 215 is the authority that is primarily about obtaining physical objects, which would be analogized to the criminal law authority for a grand jury subpoena duces tecum. So the analogy between 2703(d) and 215 seems quite forced. Further, it’s pretty ironic to say [...]

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Democratic Members of Congress Press Holder for Answers on Use of NSA Surveillance Data in the War on Drugs

By on August 28, 2013 1:10 pm in NSA, War on Drugs, War on Terror

Eight Democratic members of Congress are pushing Attorney General Eric Holder to answer questions about the use of NSA surveillance data in the War on Drugs:

Eight Democratic senators and congressmen have asked Attorney General Eric Holder to answer questions about a Reuters report that the National Security Agency supplies the Drug Enforcement Administration with intelligence information used to make non-terrorism cases against American citizens.

The August report revealed that a secretive DEA unit passes the NSA information to agents in the field, including those from the Internal Revenue Service, the FBI and Homeland Security, with instructions to never disclose the original source, even in court. In most cases, the NSA tips involve drugs, money laundering and organized crime, not terrorism.

Five Democrats in the Senate and three senior Democrats on the House Judiciary Committee submitted questions to Holder about the NSA-DEA relationship, joining two prominent Republicans who have expressed concerns. The matter will be discussed during classified briefings scheduled for September, Republican and Democratic aides said.

“These allegations raise serious concerns that gaps in the policy and law are allowing overreach by the federal government’s intelligence gathering apparatus,” wrote the senators – Tammy Baldwin of Wisconsin, Ron Wyden of Oregon, Tom Udall of New Mexico, Richard Blumenthal of Connecticut and Sherrod Brown of Ohio.

I previously wrote about this dangerous trend in this post.

The Reuters article quoted above notes that some Republicans are pushing for answers as well. But it’s more telling that these Democrats are doing so, despite the fact that the policy in question is conducted by a president of their own party. [...]

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Geoffrey Stone Added to NSA Surveillance Review Committee

By on August 27, 2013 10:47 pm in NSA

Today the White House formally released the names of the committee of “outside experts” to review the NSA’s surveillance practices. A fifth name was added to the list beyond the four leaked last week: Professor Geoffrey Stone of the University of Chicago Law School. I debated Professor Stone on national security surveillance issues back in 2005 or 2006 for a U of C Federalist Society event. Based on that experience, my sense is that he will come at the issues from a strong civil libertarian perspective, with the caveat that he is not a subject matter expert in surveillance law or technology. Stone is the author of the book Top Secret: When Our Government Keeps Us in the Dark , which you can watch him and others discuss here.

UPDATE: A google search pulls up a recent interview of Stone on Amy Goodman’s Democracy Now! program in which Stone suggests a different perspective from what I would have guessed:

Geoffrey Stone: . . . [T]here is, so far as I can tell from everything that’s been revealed [by Edward Snowden], absolutely nothing illegal or criminal about these programs. They may be terrible public policy—I’m not sure I approve of it at all—but the fact is the claim that they’re unconstitutional and illegal is wildly premature. Certainly from the standpoint of what’s been released so far, whether Mr. Hedges likes it or not, or whether Mr. Snowdon likes it or not, these are not unconstitutional or illegal programs.

Amy Goodman: Let me go to a letter that you co-signed, Professor Stone, in 2006 with other prominent attorneys about NSA surveillance under President Bush. You were criticizing it. You wrote, quote, “Although the program’s secrecy prevents us from being privy to all of its details, the Justice Department’s defense of what

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DOJ Defends Telephony Metadata Program in SDNY

By on August 26, 2013 11:28 pm in NSA

Readers following EPIC’s petition at the Supreme Court seeking review of the government’s telephony metadata program will be interested in this memorandum DOJ filed today in support of dismissing a complaint in a similar challenge brought by the ACLU in the South District of New York. The first ten pages of the government’s memorandum raise procedural objections; the next twenty pages cover the merits. Based on a quick skim, the merits analysis largely tracks the Administration’s recent “white paper” defending the program (a document I critiqued here). For more, see the SDNY Blog. [...]

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