Southern District of New York Holds That NSA Telephone Metadata Collection Does Not Violate Fourth Amendment

The case is ACLU v. Clapper, and the text of the opinion is available here. The New York Times reports:

A federal judge in New York on Friday ruled that the National Security Agency’s program that is systematically keeping phone records of all Americans is lawful, creating a conflict among lower courts and increasing the likelihood that the issue will be resolved by the Supreme Court.

. . .

Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies. 

“This blunt tool only works because it collects everything,” Judge Pauley said in the ruling.
“While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds it is,” he added.

The BBC's coverage of the ruling is available here.

Judge Pauley's ruling reaches a different conclusion from the District of Columbia District Court, which, in Klayman v. Obama, ruled that while the Fourth Amendment does not typically apply to information handed over to third parties, the breadth of the NSA's program is a significant enough development that this rule should be reconsidered in this case.

The opinion here specifically rejects the reasoning of Klayman, noting that information about phone numbers that customers dial can be accessed by the government without a Fourth Amendment search taking place under Smith v. Maryland.  There, the Supreme Court held that under the third-party doctrine, people lose a reasonable expectation of privacy in  information that is voluntarily handed over to third parties.  Judge Pauley writes that Smith controls this case:

Some ponder the ubiquity of cellular telephones and how subscribers' relationships with their telephones have evolved since Smith.  While people may "have an entirely different relationship with telephones than they did thirty-four years ago," Klayman, 2013 WL 6571596, at *21, this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating.  Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones.  The fact that there are more calls placed does not undermine the Supreme Court's finding that a person has no subjective expectation of privacy in telephony metadata.  See Smith, 442 U.S. at 745. ("The fortuity of whether or not the [tele]phone company in fact elects to make a quasi-permanent record of a particular number dialed does not . . . make any constitutional difference.  Regardless of the [tele]phone company's election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record.")  Importantly, "what metadata is has not changed over time," and "[a]s in Smith, the types of information at issue in this case are relatively limited: [tele]phone numbers dialed, date, time, and the like."  Klayman, 2013 WL 6571596, at *21 (emphasis in original).  Because Smith controls, the NSA's bulk telephony metadata collection program does not violate the Fourth Amendment.

Some commentators have argued that this type of argument is flawed because it relies on an overly "aggressive" interpretation of the third-party doctrine.  Those commentators note that in United States v. Jones, five out of nine justices seemed to support a "mosaic" theory of Fourth Amendment searches, where government actions that would not typically be deemed a "search" under the Fourth Amendment may rise to the level of being a search because.  Technological advances may permit the government to obtain so much surveillance information about people that people would not reasonably expect the government to know what it knows about them.

Judge Pauley acknowledges this theory of the Fourth Amendment, but concludes that it does not control this case.  Referring to Jones, he writes:

In two separate concurring opinions, five justices appeared to be grappling with how the Fourth Amendment applies to technological advances. 

But the Supreme Court did not overrule Smith.  And the 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.  Clear precedent applies because Smith held that a subscriber has no legitimate expectation of privacy in telephony metadata created by third parties.  Inferior courts are bound by that precedent. [citations omitted]

I have previously written that the third-party doctrine as stated in Smith poses a significant obstacle to Fourth Amendment challenges of surveillance programs such as the telephone metadata program, as well as for online surveillance practices.  While the reasoning of the majority of justices in Jones indicates that Smith may stand on shaky ground, no official holding of the Supreme Court has stated this, and I think that Judge Pauley was correct in his application of Smith.

As a final note, these cases are exciting because now there is a split in authority on the constitutionality of the NSA's collection of telephone metadata.  It is early to wonder about whether the Supreme Court will take these cases (as the New York Times seems to hint).  This split in authority will need to survive to the federal appellate level before that question can seriously be considered, and I have my doubts over whether Klayman's bold approach to Smith will be upheld.

But courts that are considering the constitutionality of telephonic metadata collection now have two different types of analysis that they can cite to support differing conclusions.  It will be interesting to see how Klayman and ACLU v. Clapper proceed on appeal, and how other courts end up interpreting these rulings.