After the catastrophe of 9/11, the United States government launched a number of counterterrorism measures, including a program of bulk collection of telephone record metadata. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number, the call was placed, as well as how long it lasted. It is these records that the government, pursuant to court orders, has been gathering since 2006.
On June 5, 2013, the British newspaper The Guardian reported the first of several “leaks” of classified material from Edward Snowden, a former National Security Agency (NSA) contract employee. Mr. Snowden’s leaks revealed multiple United States government intelligence collection and surveillance programs. Snowden’s disclosure showed that the NSA collects all metadata of several, if not all, telephone service providers, and that such data, if mined, can reveal a profile of every individual in the United States as well as a comprehensive record of people’s associations with one another.
In order to better understand the legal context of the collection of this metadata, a legal history lesson is in order, as taken from Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013). In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate governmental electronic surveillance of communications for foreign intelligence purposes. The executive branch had, for decades, engaged in warrantless domestic intelligence-gathering activities that had illegally infringed the Fourth Amendment rights of American citizens. Congress passed FISA in large measure as a response to the revelations that warrantless electronic surveillance in the name of national security had been abused.
FISA created a procedure for the government to obtain judicial orders authorizing domestic electronic surveillance upon a showing that the target of the surveillance was a foreign power or an agent of a foreign power. In addition, authorizing wiretaps enabled the government to obtain orders authorizing physical searches as well as pen registers. Under the business record provision, the FBI was permitted to apply for an order authorizing businesses, such as telephone service providers, to release to the FBI copies of business records upon a showing in the FBI’s application that there are specific facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.
Following the September 11, 2001, terrorist attacks, Congress passed the USA PATRIOT Act, which made changes to FISA and several other laws. The PATRIOT Act replaced FISA’s business-records provision with a more expansive “tangible things” provision. Information that the FBI acquires through such a production order concerning any United States person may be used and disclosed by federal officers and employees without the consent of the person only in accordance with the minimization procedures adopted by the Attorney General and approved by the Foreign Intelligence Surveillance Court (FISC).
The government’s collection of the metadata concerning telephonic communications has been going on since 2006. The FISC orders governing the metadata collection provide that the records may be accessed only for counterterrorism purposes. Nevertheless, NSA intelligence analysts may access the records to obtain foreign intelligence information through queries of the records performed using identifiers such as telephone numbers associated with terrorist activity.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A Fourth Amendment “search” occurs either when “the [g]overnment obtains information by physically intruding on a constitutionally protected area,” United States v Jones, ___U.S.___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), or when “the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)(Harlan, J., concurring).
The Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), is the most relevant Supreme Court decision when it comes to the constitutionality of the government’s collection of telephone service provider metadata under FISC. In Smith, police were investigating a robbery victim’s reports that she had received threatening and obscene phone calls from someone claiming to be the robber. Without obtaining a warrant or court order, police installed a pen register, which revealed that a telephone in Smith’s home had been used to call the victim on one occasion. The Supreme Court held that Smith had no reasonable expectation of privacy in the numbers dialed from his phone because he voluntarily transmitted them to his phone company, and because it is generally known that phone companies keep such information in their business records.
In one of two cases challenging the government’s metadata gathering, Judge Leon of the United States District Court of the District of Columbia wrote:
When do present-day circumstances—the evolutions in the [g]overnment’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now . . . I am convinced that the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. To the contrary . . . I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.
Klayman v. Obama, supra, 957 F.Supp.2d at 31–32.
On the other hand, in ACLU v. Clapper, 959 F.Supp.2d 724 (S.D.N.Y. 2013), the United States District Court for the Southern District of New York, Judge Pualey concluded otherwise, writing that in Smith, “the Supreme Court found there was no legitimate privacy expectation because ‘[t]elephone users . . . typically know that they must convey numerical information to the telephone company; that the telephone company has facilities for recording this information; and that the telephone company does in fact record this information for a variety of legitimate business purposes.” Id., citing Smith, supra, 442 U.S. at 743; United States v. Reed, 575 F.3d 900 (9th Cir. 2009).
“[T]he Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases. ‘[T]he Court of Appeals should . . . leav[e] to th[e Supreme] Court the prerogative of overruling its own decisions.’” ACLU v. Clapper, supra, citations omitted.
The Current Legal Landscape of the U.S. Government’s Bulk Collection of Telephone Record Metadata, Feb. 2015 Update
The plaintiff in Klayman attempted to bypass the U.S. courts of appeals and give the U.S. Supreme Court the opportunity to overrule or distinguish its decision in Smith right away, something it declined to do on April 7, 2014. The Klayman case was argued before the D.C. Circuit Court of Appeals on November 11, 2014. Clapper was argued before the Second Circuit Court of Appeals on September 9, 2014. Neither circuit has issued an opinion yet. Several other cases also have challenged the legality of the metadata mining program, most notably United States v. Moalin, 2013 WL 6079518 (Nov. 18, 2013), and Smith v. Obama, 24 F.Supp2d 1005 (June 3, 2014), both of which are pending in the U.S. courts of appeals. After this issue is addressed by several of these appellate courts it will almost certainly be addressed by the U.S. Supreme Court in what will be one of the most important Supreme Court decisions in the history of our country.