Technology, the Law and the Constitution
January 6, 2014 § Leave a comment
Two federal district judges, within the past two weeks, have rendered squarely opposing decisions concerning the constitutionality of NSA’s collection of metadata. That metadata, accumulated continuously since 2006, consists of the daily acquisition of the following information from all major carriers of telephonic communication within the United States: The time, date and duration of every telephone call made within, to or from any telephone in the U.S.; the length of the call; the telephone numbers of the source and destination of the call; and the transmission tower which transmitted the call (thus identifying the physical location near where the call was made). This metadata is held in NSA databanks, where it is retained for five years.
In the following post I will write about these two decisions, my opinions of them and what I perceive as serious implications from their rulings for the future of our country.
One reason lawyers’ writing fails to command the attention of ordinary readers is that they don’t think like ordinary people. Lawyers, like me, try to reason toward a conclusion by first stating the bases that lead to it. After setting out those bases, the lawyer triumphantly announces the conclusion.
Newspaper reporters and writers, who write for a living, call this “burying the lead”. The idea is not to bore the reader with long descriptions of facts, events and opinions before disclosing the purpose of the piece.
This is an effort to avoid that pitfall.
The two court decisions discussed below involve some very important legal issues that significantly affect the relationship between all of us and government, both federal, state and local:
In this digital age, our communication capability depends on use of third-party facilities that relay the expression of our thoughts about everything in our lives: Satellites, telephone towers and switch complexes, coaxial cables, and an array of other “hubs” that pick up the signals we emit from our phones, Ipads and computers and send them on their way to specific or general destinations chosen by us. When property law is applied to those processes, the result is that we transfer ownership of our thoughts to those “hubs” when we tap screens or buttons on our communication devices. So, when government wants to know what we are up to, it doesn’t have to involve us or even make us aware of its curiosity. It can go to the “hubs” and intercept all the information it wants.
An ancillary legal result of this the legal principle declares that if we share information about ourselves with a third party, we can no longer claim that it is private, not available for the scrutiny of others. This idea that allowing one peep from one person entitles the world to peep is, fortunately, subject to an important exception: If society reasonably believes that, regardless of having involved a third party in the transmission of our information, it should nevertheless be private and unavailable to unauthorized disclosure, then the Fourth Amendment imposes restrictions of government’s right to access it.
The Supreme Court has grappled with these principles for decades. One case involved a policeman, sans warrant, sticking a tape recorder to the side of a telephone booth and recording Mr. Katz’s end of a telephone conversation. The Court held this violated the Fourth Amendment. In another case, again warrant-less, police went to the telephone company switch room and attached a pen register that recorded every telephone number dialed by Mr. Smith for a period of thirteen days. The Court decided that this did not violate the Fourth Amendment because Mr. Smith was presumed to know that the numbers he dialed were recorded by the telephone company. Why? Because every month he received a bill that listed those numbers. So, five members of the Court ruled that he should have known that the government might have access to that information.
We now know, thanks to Edward Snowden that, since 2006, NSA has obtained, from all domestic telephone carriers, copies of every telephone call made to or from every telephone in the United States and has retained a database consisting of that information for the past five years. This has been done without any warrant claiming any of the callers were guilty of any wrongdoing. The accumulation of this information has been done pursuant to orders of the FISA court, but the only justification for securing those orders has been a showing that the information was relevant to the effort to thwart terrorism.
The two federal district court cases discussed in the following essay represent two opposing views of the above mentioned legal principles and their proper application to this metadata acquisition and accumulation. If the Supreme Court ultimately decides that we are like Mr. Smith, then any government agency can track all of our communications, telephonic or otherwise, if they involve third party hubs. They won’t be able to listen to our conversations but they will be able to know whom we communicated with and who communicated with us, when, for how long and where we were when the communication occurred.
If they decide, as Judge Leon did in the Klayman case, that we did not reasonable anticipate, when me engaged in digital communication for the past five years, that the government would be tracking each of those communications and maintaining a record of them available for future access, then the Fourth Amendment will protect us. If they agree with Judge Paulley’s decision in the A.C.L.U. case, the Fourth Amendment will be inapplicable.
I believe this is a turning point in this experiment of ours: How to balance freedom and security in a democracy. If the Fourth Amendment allows the federal government to do what NSA has done, that same Fourth Amendment is the only barrier to the same kind of surveillance by state and local government agencies. Everyone wants to be protected from a terrorist bomb. I believe too little attention is being paid to the danger of NSA type surveillance by the Ted Cruz administration or by some rural county sheriff targeting political enemies or by the DEA waging the “war on drugs”.
So, here is my “lead”. If you are interested in how two federal district judges have reacted to these issues, read on.
The Judges and the Parties
Judge Richard Leon was a classmate of later-to-be Supreme Court Justice Clarence Thomas. He was appointed to be a federal district judge in the D.C. Circuit by President George Bush.
Judge William Pauley III was appointed to be a federal district judge in the Southern District of New York by President Bill Clinton.
Larry Klayman is counsel for the plaintiffs in the Klayman case. Ignoring the time-honored maxim that a lawyer representing himself has a fool for a client, Klayman is both counsel and one of five plaintiffs in the case. His career exemplifies the reason lawyers have a bad reputation: In 1988, he sued his mother for $50,000, seeking reimbursement for medical expenses incurred on behalf of his grandmother. His brother reported this to Newsweek and, when it published the information, Larry Klayman blamed the Clinton White House, with which he had been feuding. Two different federal judges, one in California and one in New York, banned him from appearing in their court because of his misbehavior. The Florida Bar Association publicly reprimanded him for mishandling a suit for a client. He has filed numerous suits against government agencies. He sued Rachel Maddow for defamation. The case was dismissed and he was ordered to pay several thousand dollars to reimburse her for defending the groundless suit. This is only part of a Wikipedia description of this lawyer. Unfortunately, he is in charge of an important lawsuit.
The other named plaintiff, Charles Strange, is the father of a former NSA employee who was killed in a Seal Team operation. His apparent motivation for this litigation is based on his belief that NSA was responsible for his son’s death. Judge Leon dismissed the claims made by the remaining three plaintiffs because they were not subscribers to any telephone carrier. There is no apparent explanation for Klayman choosing himself, Mr. Strange and three others who did not subscribe to telephone service as plaintiffs seeking relief in federal court for the government’s misuse of telephone service. Surely, of the more than 250 million telephone subscribers in America, there were other more appropriate plaintiffs. But, who am I to argue with success?
Klayman intends to expand his suit as a class action. Judge Leon has made no ruling on that application. One issue will be whether Klayman and Strange are appropriate representatives of what will surely be a very large class or telephone users. That may prove to be an interesting issue.
The Klayman Decision
Having expressed my opinion, in several thousand words, of the NSA’s metadata accumulation, I assume it is obvious that I agree with Judge Leon and disagree with Judge Pauley. So, I am certainly biased. But, if you read even a part of Judge Leon’s opinion, I think you will see that he has crafted a creative opinion, dealing fully with the counter arguments he anticipates and carefully declining to rule on issues unnecessary to his conclusion.
The Standing Issue
Federal courts have limited jurisdiction. Before they can render a judgment, they must have before them a “case or controversy”. This has been construed to mean that the party seeking relief must prove that he or she has sustained or will sustain a violation of some legal right if relief is not granted.
Before the Snowden disclosures, this was a serious barrier to obtaining judicial review of NSA’s surveillance practices. Secrecy prevented people from knowing the government had acquired information about their telephone subscriptions. So, they could not establish standing to challenge the activity. When documents disclosed by Snowden revealed that NSA maintained metadata consisting of every telephone number of every telephone used in the U.S., any telephone subscriber acquired at least an arguably valid claim of standing to challenge that NSA practice.
Once that threshold was breached, the issue became: Did the NSA’s acquisition of the information violate any right?
The ultimate outcome of the conflict between the Klayman case and the Clapper case depends on whether NSA’s collection of data about a telephone number without any claim that the subscriber has violated any law or regulation violates the subscriber’s rights.
Judge Leon’s Careful Limits on The Scope of His Decision
The judge wisely disclaims any opinion about the broad accumulation of internet, email and social media data in the program called “Prism”. He agreed that plaintiffs’ claims of injury because of that program were too vague and speculative to qualify for standing. Thus, he seeks to avoid conflict with the Supreme Court decision in Clapper v.Amnesty Int’l, wherein the Court held that Amnesty’s fears that their overseas telephone calls to clients and others would be intercepted by NSA were too speculative to qualify for standing to bring suit.
During oral argument Judge Leon asked Larry Klayman whether he had any evidence that the government had accessed any of his or Charles Strange’s online activity. Klayman responded, “I think they are messing with me.” Not surprisingly, the Judge decided this fell short of establishing standing to complain of government’s monitoring of internet traffic. In addition, Judge Leon’s opinion cites two statements by NSA that the process of wholesale accumulation of email and internet metadata was discontinued in 2011. [Page 4, footnote 6] Thus, the injunctive relief sought by the plaintiffs would be moot.
The Admiinistrative Procedure Act Claims
The plaintiffs alleged that NSA and the FISA court exceeded the authority granted by Congress when they ordered the acquisition of the telephonic metadata. The APA contains a broad grant of jurisdiction to federal courts to hear such claims.
Judge Leon ruled against the plaintiffs and included a lengthy analysis of the issue in his opinion. As construed by previous decisions, the general grant of jurisdiction in the APA is subject to an exception: If Congress has declared, or at least plainly implied, by other legislation, that challenges to the authority of a particular federal agency must be made according to a procedure specifically designed for making such challenges, that procedure must be followed and the general sweep of the APA procedure is inapplicable. Because the law creating the FISA court includes specific procedures for challenging its rulings, Judge Leon rules that the general grant of jurisdiction in the APA does not apply. He therefore denies all claims made by the plaintiffs based on the APA.
The Non-Subscriber Plaintiffs
As stated earlier, for reasons best known to him, Larry Klayman picked three of his plaintiffs from the relatively small number of Americans who have no telephone service. So, Judge Leon dismissed their claims because they had no basis for complaining about the government’s acquisition of telephone information..
To summarize, he limits his ruling to the accumulation and analysis of telephonic metadata. He bases his decision solely on the 4th Amendment, disclaiming any opinion about conflict with the 1st Amendment.
The Fourth Amendment Claims
The Statutory Basis For Government’s Acquisition and Use of Telephone Metadata
50 U.S.C. 1861, a part of the Patriot Act, has been construed to authorize the FBI to file an ex parte application in the FISA court seeking the right to seize and copy “call detail records” of all telephone calls made to and from telephones located in the U.S.. The application must include a “statement of facts showing that there are reasonable ground to believe that the tangible things sought are relevant to an authorized investigation. . .to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” quoted at page 11 [emphasis added]
As a result of Snowden’s disclosures, made though The Guardian, we now know that these applications have been filed and granted for the past seven years. Based on them, the NSA has required all domestic telephone carrier companies to forward to NSA each day, call detail records of every telephone call made within the U.S..
Here is a description of a “call detail record” taken from Judge Leon’s opinion, quoting from a FISA order disclosed by Snowden and acknowledged to be authentic by the government: “For purposes of this Order ‘telephony metadata’ includes comprehensive communications routing information, including but not limited to session identifying information(e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, Internationsl Mobile Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.” [page 15, footnote 16]
Based on FISA orders like the one just quoted, NSA has a five-year database containing that information obtained from all carriers
The Way NSA Accesses and Uses Its Five-Year Accumulation of Metadata
Judge Leon accepts the Government’s own description of its use of its metadata. The process starts with a ‘seed”, described as a telephone number originating with a person of whom NSA has a “reasonable, articulable suspicion” (RAS) as being somehow connected with a foreign terrorist organization. When the seed has been identified, the seed’s telephone number is used as a starting point for identifying others with whom the seed has been in contact.
Here is Judge Leon’s description of this process:
“In plain English,h this mean that if a search starts with a telephone number (123)456-7890 the first “hop” will include all the telephone numbers the “seed” has called or received calls from in the last five years (say, 100 numbers),the second hop will include all the telephone numbers that each of those 100 numbers has called or received calls from in the last five years (say 100 numbers for each of the “first hop” numbers” or 10,000 total), and the third hop will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the past five years (say,100 calls for each of the “second hop” numbers or 1,000,000 total).” He concludes “. . . it is likely that the quantity of phone numbers captured in any given query would be very large.”. [Opinion page 18]
For more of the Judge’s analysis see footnote 21 at page 19 of the decision. The Judge remarks that the NSA spokeswoman who sought to trivialize the number of telephone numbers typically accessed in response to a RAS was guilty of a “glaring understatement” and that her assurance that the total number of telephone numbers analyzed based on a “seed” was a “small percentage” was “virtually meaningless when placed in context.” Judge Leon observed that, if one of the telephone numbers used to identify the “seed”‘s contact happened to be a Domino’s Pizza, the result would be expanded dramatically.
Here is Judge Leon’s description of NSA’s analysis process after the “three hop” search has created a new sub-group of telephone numbers:
““Once a query is conducted and it returns a universe of responsive records (i.e., a universe limited to records of communications within three hops from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms. [citation omitted] According to the Government, following the ‘chains of communication’ – which, for chains that cross different communications networks, is only possible if the metadata is aggregated – allows the analyst to discover information that may not be readily ascertainable through other, targeted intelligence-gathering techniques. [citation omitted] For example, the query might reveal that a seed telephone number has been in contact with a previously unknown U.S. telephone number – i.e., on the first hop. [citation omitted] And from there, ‘contact-chaining’ out to the second and third hops to examine the contacts made by that telephone number may reveal a contact with other telephone numbers already known to the Government to be associate with a foreign terrorist organization.” [Opinion, page 20]
Fourth Amendment Claims Not Precluded
As discussed earlier, Judge Leon ruled that Plaintiffs’ claims based on the APA were precluded by the Congress’s appeal procedure from actions by the FISA court. He distinguished that from preclusion of constitutional claims based on the Fourth Amendment. Citing Supreme Court precedent, he wrote that denying the right to bring a constitutional claim in federal court required a significantly more explicit expression of intent by Congress than required for precluding statutory claims. Here is his analysis:
““The presumption that judicial review of constitutional claims is available in federal district courts is a strong one [citation omitted] and if the . . . heightened standard is to mean anything, it is that Congress’s intent to preclude review of constitutional claims must be much clearer than that sufficient to who implied preclusion of statutory claims. Where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen’s right to judicial review of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme. While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution.” [Opinion, page 35][emphasis added]
The Plaintiff’s Claims That Their Telephone Numbers Were Accessed and Analyzed Are Not Speculative
Judge Leon rejected NSA’s contention that the Plaintiffs’ claims were speculative because they could not prove their particular telephone numbers had been accessed and analyzed. He caught the government simultaneously arguing that, to be effective in combating terrorism, it had to have access to all telephone numbers; then contending that the Plaintiff’s telephone numbers may not have been accessed or analyzed. His demolition of this twisted logic is a pleasure to read. Here is a footnote that is a classic piece of lawyering: Cutting through complexity with easily understood analogy.
““The difference between querying a phone number belonging to a domestic Verizon subscriber (for which metadata has been collected) and querying a foreign number (for which metadata has not been collected) might be analogized as follows: A query that begins with a domestic U.S. phone number is like entering a library and looking to find all of the sources that are cited in Battle Cry of Freedom by James M. McPherson (Oxford University Press 1988). You find that specific book, open it, and there they are. ‘Hop one’ is complete. Then, you want to find all the sources cited within each of those sources (‘hop two’), and so on. At the end of a very long day, you have looked only at books, articles, etc. that were linked to Battle Cry of Freedom.
“Querying a foreign phone number is like entering a library and trying to find every book that cites Battle Cry of Freedom as a source. It might be referenced in a thousand books. It might be in just ten. It could be zero. The only way to know is to check every book. At the end of a very long month, you are left with ‘hop one’ results (those books that cite Battle Cry of Freedom), but to get there, you had to open every book in the library.” [Opinion, page 40, footnote 18]”
It seems to me that Judge Leon has effectively ended any argument about whether any U.S. telephone subscriber’s telephone number, including information related to that telephone number, has been acquired, accessed and analyzed by the Government. The “speculative” defense has, I think, been destroyed.
The Right of Privacy, the Fourth Amendment and Smith v. Maryland
The last twenty-five pages of Judge Leon’s opinion, (pages 43-68), are an essay on the impact of modern technology on the appropriate legal analysis of Fourth Amendment rights. He begins with a discussion of Smith v. Maryland, the Supreme Court case that is relied upon by all defenders of NSA’s metadata program. That case, decided in 1979, involved a robbery victim who, after the robbery, received threatening phone calls she associated with the robbery. When she complained to the police, they arranged with the telephone company to attach a pen register to the telephone line belonging to Smith, a suspect in the robbery. They did so without a warrant or a court order. The pen register disclosed that, during the thirteen days it was attached to Smith’s phone line, a call was made to the victim’s home. That became a key piece of evidence leading to Smith’s conviction.
Judge Leon cites abundant evidence that the technology at issue here is dramatically different from the brief pen register attachment in Smith. Without attempting to summarize all of his reasoning, suffice to say that he argues that applying the Court’s reasoning in Smith to the NSA’s surveillance program is like comparing traffic safety regulations designed for horse and buggy traffic to those appropriate for modern freeway driving.
The standard applied by the five Justices who wrote the opinion in Smith was the one announced in an earlier case, Katz v. U.S., which held that attaching a listening device to a phone booth and recording a conversation by a caller violated the Fourth Amendment. There the Court, following earlier precedent, ruled that the Fourth Amendment protected a right of privacy reasonably assumed to exist by society. The Court ruled that, because Smith, as a telephone subscriber, knew his telephone calls were recorded by the telephone company in order to prepare his bill, he had no reasonable expectation that the telephone numbers he called were kept private.
Judge Leon contends that these decisions are wildly in-apposite to a belief that the average American telephone user assumes that the government is maintaining and has maintained a giant database consisting of every telephone number of every call they make and of every call made to them; that this data is retained, accessed and analyzed by the government for five years .
The Judge cites other Supreme Court decisions which, to me, are more pertinent to the issue. For example, in one decision, the Supreme Court held that the Fourth Amendment was not violated when the police attached a short range tracking device to a suspect’s car and used it to track him on one occasion. The Court held that, when we drive about, we have no expectation that our movements may not be observed by others. In another case, however, the Court held that the Fourth Amendment was violated when the police attached a long range beeper to a suspect’s car and used it to track his movements for a month.
The NSA’s Collection of Metadata is Unreasonable
In the concluding part of his opinion, Judge Leon responds to the Government’s claim that the acquisition and retention of its metadata was and is necessary because seeking judicial approval would take too long. He wrote that NSA cited three instances where they used the metadata in apprehending an alleged terrorist. In all three, the metadata was accessed after the suspected terrorist had been identified using other conventional means. The metadata was used either to find another participant in a plot or to confirm information already known. In none of the examples cited by NSA was speed a factor.
American Civil Liberties Union v. Clapper
In this case Judge Paulley discusses and considers each issue ruled upon by Judge Leon. He agrees that A.C.L.U has standing because of the disclosures made by Snowden. He agrees with Judge Leon that A.C.L.U.’s claims based on the Admiinistrative Procedure Act fail for the same reasons cited by Judge Leon.
He disagrees with Judge Leon’s bases for distinguishing Smith v. Maryland. He contends that, while telephonic usage and technology have dramatically changed, a telephone is still a telephone. For Judge Pauley, when the Supreme Court decided that a pen register could be attached to Mr. Smith’s telephone without a warrant, that settled the issue: One telephone or 300 million telephones, thirteen days or five years, Judge Pauley can’t see any difference.
He discusses the possibility that NSA might utilize a database of 300 million telephone calls over a five-year period to look for some patterns of behavior that might involve more prying into the lives of innocent citizens than was possible when the government attached a pen register to a single telephone line. Here is how he dismisses such fears:
““. . . , without resort to additional techniques, the Government does not know who any of the telephone numbers belong to. In other words, all the Government sees is that telephone number A called telephone number B. It does not know who subscribes to telephone numbers A or B. Further, the Government repudiates any notion that it conducts the type of data mining the ACLU warns about its parade of horribles.” [Opinion, page 41] He buttresses his confidence on this point by citing this reassurance from General Alexander:
“General Alexander’s testimony on this point is crystal clear: ‘]I]n the open press there’s this discussion about pattern analysis on this. That is absolutely incorrect. We are not authorized to go into the data, nor are we data mining, or doing anything with the data other than those queries that we discuss, period. We’re not authorized to do it. We aren’t doing it. There are no automated processes running in the background pulling together data trying to figure our networks. . . . The only time you can do pattern analysis is, once you start the query on that query and where you go forward.’ Alexander Testimony at 66”
This exemplifies Judge Paulley’s entire approach to the case: He accepts without any hint of skepticism every reassuring statement from NSA witnesses. Here is an example that he includes in his opinion. I think this is dishonest because he cites and discuses Judge Leon’s opinion and therefore is bound to know how misleading these numbers are.
“Because each query obtains information for contact numbers up to three hops out from the seed, the total number of responsive records was ‘substantially larger than 300, but. . ..still a very small percentage of the total volume of metadata records.’ [quoting an NSA declaration ] Between May 2006 and May 2009,the NSA provided the FBI and other agencies with 277 reports containing approximately 2,900 telephone numbers. [citation of NSA declaration omitted]” [Opinion, page 12]”
Without the information in Judge Leon’s opinion, we might conclude that we are all exaggerating the importance of this argument. 2,900 telephone numbers doesn’t look like much of a trove of data. It also conceals what NSA actually does.
Judge Paulley discusses the automobile tracker cases cited by Judge Leon. He argues, however, that the decision finding that a Fourth Amendment violation had occurred was based on the fact that the device left on the suspect’s car for a month was placed there in a way that caused the Court to equate it with an actual intrusion into the car. That does not comport with the quotation from the second decision quoted in Judge Leon’s opinion. See Judge Leon’s opinion, pages 46-47.
These two federal district court decisions neatly contrast the nature of the debate in progress in our nation. Like any debate, the statement of the issue is important. I believe a fair version of the issue is:
What is the most serious and fundamental threat we face: Bombs from a foreign terrorist or our government’s effort to protect us?
I contend the answer is “our government’s effort to protect us”. My contention is based on my understanding of history. It seems to me that ceding power to government is always an irreversible transaction. Once acquired, power is never relinquished. I fear this NSA surveillance because it is power given to an agency that operates in secrecy; whose operational purpose, spying, is one that succeeds by lying and deception. Everything about it is anathema to the safeguards of a legal system and a Constitution that has force only if enforceable in court.
Even if we trust the present managers of these powers, allowing the creation of such potentially damaging weapons will serve as a temptation for abuse for countless generations. Already, local police chiefs and county sheriffs are clamoring for access to this gigantic mass of information about every person in this country. Are we so naive as to think that information will not sooner or later be used to punish political enemies or to crush unpopular dissent?
LIke all my fellow Americans, I am waiting with a mixture of hope and apprehension for the decision of President Obama concerning the proper limits of these surveillance programs. I hope his background as a constitutional law professor will give him courage to accept the risk that ,if he reins in NSA and a terrorist bomb explodes during his presidency, he will be blamed.
I will be watching and hoping.