The Snowden Reader

by David P Fidler

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  b. Plaintiffs Are Likely to Succeed on the Merits of Their Fourth Amendment Claim.

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  The threshold issue [under the Fourth Amendment] . . . is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets. If they do—and a Fourth Amendment search has thus occurred—then the next step of the analysis will be to determine whether such a search is “reasonable.” . . .

  i. The Collection and Analysis of Telephony Metadata Constitutes a Search.

  The analysis of this threshold issue of the expectation of privacy must start with the Supreme Court’s landmark opinion in Smith v. Maryland [1979] . . . , which the FISC has said “squarely control[s]” when it comes to “[t]he production of telephone service provider metadata.” . . . 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 [a device that records the numbers dialed from a specific telephone number], 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. . . . The main thrust of the Government’s argument here is that under Smith, no one has an expectation of privacy, let alone a reasonable one, in the telephony metadata that telecom companies hold as business records; therefore, the Bulk Telephony Metadata Program is not a search. . . . I disagree.

  The question before me is not the same question that the Supreme Court confronted in Smith. To say the least, “whether the installation and use of a pen register constitutes a ‘search’ within the meaning of the Fourth Amendment,” . . . under the circumstances addressed and contemplated in that case—is a far cry from the issue in this case.

  Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances—the evolutions in the Government’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.

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  . . . [T]he Court in Smith was not confronted with the NSA’s Bulk Telephony Metadata Program. Nor could the Court in 1979 have ever imagined how the citizens of 2013 would interact with their phones. For the many reasons discussed below, 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.

  First, the pen register in Smith was operational for only a matter of days . . . , and there is no indication from the Court’s opinion that it expected the Government to retain those limited phone records once the case was over. . . . This short-term, forward-looking (as opposed to historical), and highly-limited data collection is what the Supreme Court was assessing in Smith. The NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!

  Second, the relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and telecom companies. . . . The Supreme Court itself has long-recognized a meaningful difference between cases in which a third party collects information and then turns it over to law enforcement, . . . and cases in which the government and the third party create a formalized policy under which the service provider collects information for law enforcement purposes, . . . with the latter raising Fourth Amendment concerns. In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, . . . which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program. It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government. . . .

  Third, the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person’s phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. . . . The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction. By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to “store such records and efficiently mine them for information years into the future.” . . . And these technologies are “cheap in comparison to conventional surveillance techniques and, by design, proceed[ ] surreptitiously,” thereby “evad[ing] the ordinary checks that constrain abusive law enforcement practices: limited police . . . resources and community hostility.” . . .

  Finally, and most importantly, not only is the Government’s ability to collect, store, and analyze phone data greater now than it was in 1979, but the nature and quantity of the information contained in people’s telephony metadata is much greater, as well. According to the 1979 U.S. Census, in that year, 71,958,000 homes had telephones available, while 6,614,000 did not. . . . In December 2012, there were a whopping 326,475,248 mobile subscriber connections in the United States, of which approximately 304 million were for phones and twenty-two million were for computers, tablets, and modems. . . . The number of mobile subscribers in 2013 is more than 3,000 times greater than the 91,600 subscriber connections in 1984, . . . and more than triple the 97,035,925 subscribers in June 2000. . . . It is now safe to assume that the vast majority of people reading this opinion have at least one cell phone within arm’s reach (in addition to other mobile devices). . . . In fact, some undoubtedly will be reading this opinion on their cellphones. . . . Cell phones have also morphed into multipurpose devices. They are now maps and music players. . . . They are cameras. . . . They are even lighters that people hold up at rock concerts. . . . They are ubiquitous as well. Count the phones at the bus stop, in a restaurant, or around the table at a work meeting or any given occasion. Thirty-four years ago, none of those phones would have been there. Thirty-four years ago, city streets were lined with pay phones. Thirty-four years ago, when people wanted to send “text messages,” they wrote letters and attached postage stamps.

  Admittedly, what metadata is has not changed over time. As in Smith, the types of information at issue in this case are relatively limited: phone numbers dialed, date, time, and the like. But the ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s liv
es. . . . Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago. As a result, people make calls and send text messages now that they would not (really, could not) have made or sent back when Smith was decided. . . . This rapid and monumental shift towards a cell phone-centric culture means that the metadata from each person’s phone “reflects a wealth of detail about her familial, political, professional, religious, and sexual associations,” . . . that could not have been gleaned from a data collection in 1979. . . . Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life. . . . Whereas some may assume that these cultural changes will force people to “reconcile themselves” to an “inevitable” “diminution of privacy that new technology entails,” . . . I think it is more likely that these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable.

  In sum, the Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones. . . . As I said at the outset, the question before me is not whether Smith answers the question of whether people can have a reasonable expectation of privacy in telephony metadata under all circumstances. Rather, the question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval. For the many reasons set forth above, it is significantly likely that on that day, I will answer that question in plaintiffs’ favor.

  ii. There Is a Significant Likelihood Plaintiffs Will Succeed in Showing that the Searches Are Unreasonable.

  Having found that a search occurred in this case, I next must “examin[e] the totality of the circumstances to determine whether [the] search is reasonable within the meaning of the Fourth Amendment.” . . .

  The Supreme Court has recognized . . . [that] “’special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable[]’.” . . . “Even where the government claims ‘special needs,’” as it does in this case, “a warrantless search is generally unreasonable unless based on ‘some quantum of individualized suspicion.’” . . . Still, a suspicionless search may be reasonable “‘where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion.’” . . . As such, my task is to “‘balance the [plaintiffs’] privacy expectations against the government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.’” . . . The factors I must consider include: (1) “the nature of the privacy interest allegedly compromised” by the search, (2) “the character of the intrusion imposed” by the government, and (3) “the nature and immediacy of the government’s concerns and the efficacy of the [search] in meeting them.” . . .

  “Special needs” cases . . . form something of a patchwork quilt. For example, schools and government employers are permitted under certain circumstances to test students and employees for drugs and alcohol, . . . and officers may search probationers and parolees to ensure compliance with the rules of supervision. . . . The doctrine has also been applied in cases involving efforts to prevent acts of terrorism in crowded transportation centers. . . . To my knowledge, however, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet.

  For reasons I have already discussed at length, I find that plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years, and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation. Whether the program violates the Fourth Amendment will therefore turn on “the nature and immediacy of the government’s concerns and the efficacy of the [search] in meeting them . . .”.

  The Government asserts that the Bulk Telephony Metadata Program serves the “programmatic purpose” of “identifying unknown terrorist operatives and preventing terrorist attacks”—an interest that everyone, including this Court, agrees is “of the highest order of magnitude[.] . .”. A closer examination of the record, however, reveals that the Government’s interest is a bit more nuanced—it is not merely to investigate potential terrorists, but rather, to do so faster than other investigative methods might allow. Indeed, the affidavits in support of the Government’s brief repeatedly emphasize this interest in speed. For example, according to SID [Signals Intelligence Directorate] Director Shea, the primary advantage of the bulk metadata collection is that “it enables the Government to quickly analyze past connections and chains of communication,” and “increases the NSA’s ability to rapidly detect persons affiliated with the identified foreign terrorist organizations.” . . . (emphasis added)[.]

  Yet, . . . the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government . . . involved any apparent urgency. . . . In the first example, the FBI learned of a terrorist plot still “in its early stages” and investigated that plot before turning to the metadata “to ensure that all potential connections were identified.” . . . Assistant [FBI] Director Holley does not say that the metadata revealed any new information—much less time-sensitive information—that had not already come to light in the investigation up to that point. . . . In the second example, it appears that the metadata analysis was used only after the terrorist was arrested “to establish [his] foreign ties and put them in context with his U.S. based planning efforts.” . . . And in the third, the metadata analysis “revealed a previously unknown number for [a] co-conspirator . . . and corroborated his connection to [the target of the investigation] as well as to other U.S.-based extremists.” . . . Again, there is no indication that these revelations were immediately useful or that they prevented an impending attack. Assistant [FBI] Director Holley even concedes that bulk metadata analysis only “sometimes provides information earlier than the FBI’s other investigative methods and techniques.” . . . Given the . . . utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics—I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism. . . . Thus, plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government’s interest in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment.

  I realize, of course, that such a holding might appear to conflict with other trial courts . . . and with longstanding doctrine that courts have applied in other contexts. . . . Nevertheless, in reaching this decision, I find comfort in the statement in the Supreme Court’s recent majority opinion in [United States v.] Jones [(2012)] that “[a]t bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’” . . . Indeed, as the Supreme Court noted more than a decade before Smith, “[t]he basic purpose of th[e Fourth] Amendment, as recogni
zed in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” . . . The Fourth Amendment . . . is offended by “general warrants” and laws that allow searches to be conducted “indiscriminately and without regard to their connection with [a] crime under investigation.” . . . I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on “that degree of privacy” that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast.