The Snowden Reader

by David P Fidler

  . . .

  CONCLUSION

  This case is yet the latest chapter in the Judiciary’s continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens. The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable. In the months ahead, other Article III courts, no doubt, will wrestle to find the proper balance consistent with our constitutional system. But in the meantime, for all the above reasons, I will grant Larry Klayman’s and Charles Strange’s requests for an injunction and enter an order that (1) bars the Government from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephony metadata associated with their personal Verizon accounts and (2) requires the Government to destroy any such metadata in its possession that was collected through the bulk collection program.

  However, in light of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal. . . .

  Klayman v. Obama, U.S. District Court, District of Columbia, December 16, 2013 (citations in the text and footnotes omitted).

  Source: Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013), 29–44.

  28

  ACLU v. Clapper: Upholding the Legality of

  the Telephone Metadata Program

  Eleven days after Judge Leon issued his ruling in Klayman v. Obama, Judge William H. Pauley III handed down his decision in ACLU v. Clapper, rejecting the request of the ACLU and other plaintiffs for a preliminary injunction and granting the government’s motion to dismiss the case. Like Judge Leon, Judge Pauley held that federal law precluded the claim that Section 215 of the USA PATRIOT Act did not support the telephone metadata program. Judge Pauley stated, however, that even if the claim were not precluded, it would fail on the merits, and he analyzed how Section 215 authorized the telephone metadata program. On constitutional questions, Judge Pauley held that the program did not violate the First or Fourth Amendments, but he expressed unease with the Foreign Intelligence Surveillance Court only hearing the government’s arguments given the nature of the legal issues. The plaintiffs appealed Judge Pauley’s decision. A different federal court similarly rejected another claim the telephone metadata program was unconstitutional in Smith v. Obama in June 2014, and this decision was likewise appealed. The appellate courts considering ACLU v. Clapper and Smith v. Obama heard oral arguments in early September and early December 2014 respectively, but, as of this writing, neither has rendered a decision. As the excerpts in the next document help illustrate, the conflicting opinions from Judge Pauley in ACLU v. Clapper and Judge Leon in Klayman v. Obama mirrored divisions in the American body politic created by Snowden’s revelations.

  . . .

  B. Merits of the Statutory Claims

  Even if the statutory claim were not precluded, it would fail. . . . Here, the ACLU fails to demonstrate a likelihood of success on the merits of their statutory claim.

  1. Does the Stored Communications Act Prohibit the Collection of Telephony Metadata Under Section 215?

  Section 215 was enacted at the same time as an amendment to the Stored Communications Act. As amended, the Stored Communications Act prohibits communications providers from “knowingly divulg[ing]” a subscriber’s records to a government entity unless one of several exceptions are met. . . . The Government may also obtain telephony metadata with a national security letter (“NSL”). . . . An NSL does not require judicial approval. . . .

  By contrast, section 215 allows the government an order “requiring the production of any tangible thing.” . . . The only limitation—relevant here—on the types of records that may be obtained with a section 215 order are that they be obtainable with a grand jury subpoena. . . . Section 215 contains nothing suggesting that it is limited by the Stored Communications Act. Nevertheless, Plaintiffs argue that section 215 should be interpreted narrowly to avoid any conflict with the Stored Communications Act.

  But this court must attempt to interpret a statute “as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole” and is “guided to a degree by common sense.” . . . Read in harmony, the Stored Communications Act does not limit the Government’s ability to obtain information from communications providers under section 215 because section 215 orders are functionally equivalent to grand jury subpoenas. Section 215 authorizes the Government to seek records that may be obtained with a grand jury subpoena, such as telephony metadata under the Stored Communications Act.

  That conclusion is bolstered by common sense: to allow the Government to obtain telephony metadata with an NSL but not a section 215 order would lead to an absurd result. Unlike an NSL, a section 215 order requires a FISC judge to find the Government has provided a “statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant” to a foreign intelligence investigation. . . .

  . . .

  2. Did Congress Ratify The Government’s Interpretation of Section 215?

  . . .

  The Government argues Congress was aware of the bulk metadata collection program and ratified it by reenacting section 215. Before Congress reauthorized FISA, no judicial opinion interpreting relevance was public, which was in line with Congress’s design. Congress passed FISA to engraft judicial and congressional oversight onto Executive Branch activities that are most effective when kept secret. To conduct surveillance under section 215, the Executive must first seek judicial approval from the FISC. . . . Then, on a semi-annual basis, it must provide reports to the Permanent Select Committee on Intelligence of the House of Representatives, the Select Committee on Intelligence of the Senate, and the Committees on the Judiciary of the House of Representatives and the Senate. . . . Those Congressional reports must include: (1) a summary of significant legal interpretations of section 215 involving matters before the FISC; and (2) copies of all decisions, orders, or opinions of the FISC that include significant construction or interpretation of section 215. . . .

  . . . There is no doubt that the Congressional Committees responsible for oversight of this program knew about the FISC opinions and the Executive Branch’s interpretation of section 215. But what about the rest of Congress?

  In 2010 and 2011, Congress reauthorized section 215 without making any changes. Prior to the 2010 reauthorization, the Executive Branch made available to all members of Congress a classified, five-page document discussing the bulk telephony metadata program.

  . . .

  That classified document, which was made available prior to the vote for reauthorization and has now been declassified in part, informed the reader that “[section 215] orders generally require production of the business records . . . relating to substantially all of the telephone calls handled by the [telecommunications] companies, including both calls made between the United States and a foreign country and calls made entirely within the United States.” . . .

  The following year, when section 215 was again scheduled to sunset, senators were informed of an updated classified document available for their review. . . . Apparently some Senators did review it, while other Members of Congress did not. The House Intelligence Committee did not make the document available to members of the House. Dozens of House members elected in 2010 therefore never had an opportunity to review the classified document. While this is problematic, the Executive Branch did what it was required to do under the statutory scheme that Congress put in place to keep Congress informed about foreign intelligence surveillance.

  And viewing all the circumstances presented here in the national security context, this Court finds that Congress ratified section 215 as interpreted by the Executive Branch and the FISC, w
hen it reauthorized FISA. In cases finding ratification, it is fair to presume that Congress had knowledge of the statute’s interpretation. . . .

  3. Is Bulk Telephony Metadata Collection Permitted By Section 215?

  To obtain a section 215 order, the Government must show (1) “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation” and (2) that the item sought must be able to be “obtained with a subpoena . . . in aid of a grand jury investigation or with any other [court] order . . . directing the production of records or tangible things.” . . . The Government can obtain telephony metadata with grand jury subpoenas and other court orders. . . .

  A grand jury subpoena permits the Government to obtain tangible things unless “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” . . . The ACLU argues that the category at issue—all telephony metadata—is too broad and contains too much irrelevant information. That argument has no traction here. Because without all the data points, the Government cannot be certain it connected the pertinent ones. As FISC Judge Eagan noted, the collection of virtually all telephony metadata is “necessary” to permit the NSA, not the FBI, to do the algorithmic data analysis that allow the NSA to determine “connections between known and unknown international terrorist operatives.” . . . And it was the FISC that limited the NSA’s production of telephony metadata to the FBI. While section 215 contemplates that tangible items will be produced to the FBI, FISC orders require that bulk telephony metadata be produced directly—and only—to the NSA. And the FISC forbids the NSA from disseminating any of that data until after the NSA has identified particular telephony metadata of suspected terrorists. Without those minimization procedures, FISC would not issue any section 215 orders for bulk telephony metadata collection. . . .

  “Relevance” has a broad legal meaning. The Federal Rules of Civil Procedure allow parties to obtain discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense.” . . . This Rule “has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” . . . Tangible items are “relevant” under section 215 if they bear on or could reasonably lead to other matter that could bear on the investigation.

  Under section 215, the Government’s burden is not substantial. The Government need only provide “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant.” . . . Because section 215 orders flow from the Government’s grand jury and administrative subpoena powers, . . . the Government’s applications are subject to deferential review. . . .

  The concept of relevance in the context of an investigation does not require the Government to parse out irrelevant documents at the start of its investigation. Rather, it allows that Government to get a category of materials if the category is relevant. The question of the permissible scope is generally “variable in relation to the nature, purposes and scope of the inquiry.” . . . Defining the reasonableness of a subpoena based on the volume of information to be produced would require the Government to determine wrongdoing before issuing a subpoena—but that determination is the primary purpose for a subpoena. . . . And in the context of a counterterrorism investigation, that after-the-attack determination would be too late.

  Here, there is no way for the Government to know which particle of telephony metadata will lead to useful counterterrorism information. When that is the case, courts routinely authorize large-scale collections of information, even if most of it will not directly bear on the investigation. . . .

  Any individual call record alone is unlikely to lead to matter that may pertain to a terrorism investigation. Approximately 300 seeds were queried in 2012 and only a “very small percentage of the total volume of metadata records” were responsive to those queries. . . . But aggregated telephony metadata is relevant because it allows the querying technique to be comprehensive. And NSA’s warehousing of that data allows a query to be instantaneous. This new ability to query aggregated telephony metadata significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. . . . Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.

  The collection is broad, but the scope of counterterrorism investigations is unprecedented. National security investigations are fundamentally different from criminal investigations. They are prospective—focused on preventing attacks—as opposed to the retrospective investigation of crimes. National security investigations span “long periods of time and multiple geographic regions.” . . . Congress was clearly aware of the need for breadth and provided the Government with the tools to interdict terrorist threats.

  . . .

  III. Constitutional Claims

  . . .

  A. Fourth Amendment

  . . .

  In Smith v. Maryland [1979], . . . the Supreme Court held individuals have no “legitimate expectation of privacy” regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. . . . Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties.

  . . .

  The privacy concerns at stake in Smith were far more individualized than those raised by the ACLU. Smith involved the investigation of a single crime and the collection of telephone call detail records collected by the telephone company at its central office, examined by the police, and related to the target of their investigation, a person identified previously by law enforcement. . . . Nevertheless, 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.” . . .

  The ACLU argues that analysis of bulk telephony metadata allows the creation of a rich mosaic: it can “reveal a person’s religion, political associations, use of a telephone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes.” . . . But that is at least three inflections from the Government’s bulk telephony metadata collection. First, without additional legal justification—subject to rigorous minimization procedures—the NSA cannot even query the telephony metadata database. Second, when it makes a query, it only learns the telephony metadata of the telephone numbers within three “hops” of the “seed.” Third, 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 in its parade of horribles.

  The ACLU also argues that “[t]here are a number of ways in which the Government could perform three-hop analysis without first building its own database of every American’s call records.” . . . That has no traction. At bottom, it is little more than an assertion that less intrusive means to collect and analyze telephony metadata could be employed. But, the Supreme Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” . . .

  The ACLU’s pleading reveals a fundamental misapprehension about ownership of telephony metadata. In its motion for a preliminary injunction, the ACLU seeks to: (1) bar the Government from collecting “Plaintiffs’ call records” under the bulk telephony metadata collection program; (2) quarantine “all of
Plaintiffs’ call records” already collected under the bulk telephony metadata collection program; and (3) prohibit the Government from querying metadata obtained through the bulk telephony metadata collection program using any phone number or other identifier associated with Plaintiffs. . . .

  First, the business records created by Verizon are not “Plaintiffs’ call records.” Those records are created and maintained by the telecommunications provider, not the ACLU. Under the Constitution, that distinction is critical because when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information. . . . Second, the Government’s subsequent querying of the telephony metadata does not implicate the Fourth Amendment—anymore than a law enforcement officer’s query of the FBI’s fingerprint or DNA databases to identify someone. . . . In the context of DNA querying, any match is of the DNA profile—and like telephony metadata additional investigative steps are required to link that DNA profile to an individual.

  The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search. . . .

  The ACLU’s reliance on the concurring opinions in Jones is misplaced. In Jones, the police attached a GPS [Global Positioning System] tracking device to the undercarriage of a vehicle without a warrant and tracked the vehicle’s location for the next four weeks. . . . The majority held that a “search” occurred because by placing the GPS device on the vehicle, “[t]he Government physically occupied private property for the purpose of obtaining information. . . . [S]uch a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” . . . In two separate concurring opinions, five justices appeared to be grappling with how the Fourth Amendment applies to technological advances. . . .