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Monday, December 16, 2013

District Court Rules That NSA's Collection of Telephone Records is Likely Unconstitutional

In Klayman v. Obama, Judge Richard Leon of the District of Columbia Federal District Court ruled that the plaintiffs' claim that the NSA's collection of telephone records likely violates the Fourth Amendment.  This ruling has gotten wide coverage ranging from the New York Times, Washington Post, NPR, and SCOTUSBlog.  A pdf version of the district court's opinion is available here.

I do not have the time to analyze this opinion in detail because I have a tax exam tomorrow and grading that I need to complete.  But I want to highlight one portion of the opinion that distinguishes this case from Smith v. Maryland -- the foundation of modern third-party doctrine.

As I mentioned previously in the context of internet metadata collection, one of the most difficult obstacles for people making Fourth Amendment arguments over the NSA's collection of data from phone and internet companies is the third-party doctrine.  Under the third-party doctrine, if somebody knowingly discloses information to a third party, they no longer have a reasonable expectation of privacy in that information.  The logic here is that these parties have assumed the risk that the third party may turn this information over to the authorities.

In Smith v. Maryland, the Supreme Court applied this logic to the police's gathering of phone call records using a pen register.  The police installed a pen register at the telephone company, which recorded the phone numbers that the defendant dialed over a period of time.  The Court ruled that the defendant did not have a reasonable expectation of privacy in these numbers because the defendant's dialing these numbers disclosed that information to the third party -- the telephone company -- meaning that the defendant no longer had a reasonable expectation of privacy in that information.

This would normally present a problem for those trying to argue that the NSA's collection of phone number information is unconstitutional because, like the numbers dialed in Smith, the numbers the NSA collects are essentially "shared" with the phone companies.

On pages 47-56 of the opinion, the district court presents a number of arguments distinguishing the NSA's collection of information from the pen register in Smith.  The court notes the permanence of the stored information under the NSA's practices.  It also notes that the structure of the program leads to much more information being collected under the NSA's approach, and argues that the wide range of people affected by the search practices and the vast number of people and parties with phones make the NSA's practices much more of a government intrusion than the pen register in the Smith case.

Orin Kerr discusses the case here, and notes that he sees several substantial problems with the case and that he will post more on the flaws later.  I am not surprised to see Kerr taking a critical stance, since the court's ruling is based largely on statements by various justices in United States v. Jones that indicate that there is a point where searches that are typically lawful under the Fourth Amendment may, in aggregate, rise to a level where they violate the Fourth Amendment.  This is the "Mosaic Theory" of the Fourth Amendment, which Kerr describes and criticizes in this 2012 article in the Michigan Law Review.

I share some of Kerr's concerns about the mosaic theory of when a search occurs.  Like Kerr, I think that this sort of test is quite vague.  Search aggregations that are "Orwellian" -- to use the district court's terminology -- may be unconstitutional, but that leaves open the question of when a series of searches becomes "Orwellian."  Moreover, Kerr points out that adopting a vague approach to limiting the government's power to search could preempt more specific and effective statutory limitations on search powers.

I hope to look more into this case once I have finished taking and grading exams, but whatever commentator's end up concluding on the case's merits, there is no denying that this is a very significant development.


Orin Kerr provides further feedback on the ruling here, concluding that the Smith v. Maryland argument seemed particularly weak and that existing DC Circuit precedent applying the mosaic theory makes the jurisdiction of this decision particularly interesting.

And Jameel Jaffer, Deputy Legal Director at the ACLU says:
This is a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA’s call-tracking program can’t be squared with the Constitution.

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