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 […]
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Judge Pauley of the SDNY Upholds NSA Section 215 Program
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 […]
Liberals and Conservatives Switch Positions on NSA Surveillance
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 […]
Another Problem With Judge Leon’s NSA Opinion: Absolute vs. Relative Measurements and Fourth Amendment Reasonableness
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 […]
Can the DC Circuit Use the Mosaic Theory to Invalidate the NSA Telephony Metadata Program?
By Orin Kerr 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 […]
Preliminary Thoughts on Judge Leon’s Opinion
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 […]
David Kris Publishes the Best Defense (By Far) of the Lawfulness of the NSA’s Telephony Metadata Program
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 […]
My (Mostly Critical) Thoughts on the August 2013 FISC Opinion on Section 215
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 […]
Democratic Members of Congress Press Holder for Answers on Use of NSA Surveillance Data in the War on Drugs
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 […]
Geoffrey Stone Added to NSA Surveillance Review Committee
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 […]
DOJ Defends Telephony Metadata Program in SDNY
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 […]