The Snowden Reader

by David P Fidler

  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.

  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], . . . 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. . . . Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.

  B. First Amendment

  . . . Pervasive Government surveillance implicates not only the Fourth Amendment but also the First Amendment . . . [.]

  . . .

  The ACLU alleges that “[t]he fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact Plaintiffs.” . . . Significant impairments of first amendment rights “must withstand exacting scrutiny.” . . . The Government contends, however, that “surveillance consistent with Fourth Amendment protections . . . does not violate First Amendment rights, even though it may be directed at communicative or associative activities.” . . .

  The Government’s argument is well-supported. . . .

  Here, it is unnecessary to decide whether there could be a First Amendment violation in the absence of a Fourth Amendment violation because . . . the bulk metadata collection does not burden First Amendment rights substantially. . . . There must be “a direct and substantial” or “significant” burden on associational rights in order for it to qualify as “substantial.” . . . “Mere incidental burdens on the right to associate do not violate the First Amendment.” . . .

  Any alleged chilling effect here arises from the ACLU’s speculative fear that the Government will review telephony metadata related to the ACLU’s telephone calls. For telephony metadata to be “used to identify those who contact Plaintiffs for legal assistance or to report human-rights or civil-liberties violations,” . . . it must actually be reviewed and the identities of the telephone subscribers determined. Fear that telephony metadata relating to the ACLU will be queried or reviewed or further investigated “relies on a highly attenuated chain of possibilities.” . . . “[S]uch a fear is insufficient to create standing[.]” . . . Neither can it establish a violation of an individual’s First Amendment rights.

  IV. Remaining Preliminary Injunction Considerations

  For the reasons above, the ACLU has failed to state a claim and its case must be dismissed. But even if it could show a likelihood of success on the merits, a preliminary injunction would be inappropriate. . . .

  Here, the balance of the equities and the public interest tilt firmly in favor of the Government’s position. “Everyone agrees that the Government’s interest in combating terrorism is an urgent objective of the highest order.” . . .

  The Constitution vests the President with Executive Power. . . . That power reaches its zenith when wielded to protect national security. . . . And courts must pay proper deference to the Executive in assessing the threats that face the nation. . . . Any injunction dismantling the section 215 telephony metadata collection program “would cause an increased risk to national security and the safety of the American public.” . . . The “unique capabilities” of the telephony metadata collection program “could not be completely replicated by other means.” . . .

  The effectiveness of bulk telephony metadata collection cannot be seriously disputed. Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America’s enemies. Nevertheless, the Government has acknowledged several successes in Congressional testimony and in declarations that are part of the record in this case. In this Court’s view, they offer ample justification:

  • In September 2009, NSA discovered that an al-Qaeda-associated terrorist in Pakistan was in contact with an unknown person in the United States about efforts to perfect a recipe for explosives. NSA immediately notified the FBI, which investigated and identified the al-Qaeda contact as Colorado-based Najibullah Zazi. The NSA and FBI worked together to identify other terrorist links. The FBI executed search warrants and found bomb-making components in backpacks. Zazi confessed to conspiring to bomb the New York subway system. Through a section 215 order, NSA was able to provide a previously unknown number of one of the co-conspirators—Adis Medunjanin.

  • In January 2009, while monitoring an extremist in Yemen with ties to al-Qaeda, the NSA discovered a connection with Khalid Oazzani in Kansas City. NSA immediately notified the FBI, which discovered a nascent plot to attack the New York Stock Exchange. Using a section 215 order, NSA queried telephony metadata to identify potential connections. Three defendants were convicted of terrorism offenses.

  • In October 2009, while monitoring an al-Qaeda affiliated terrorist, the NSA discovered that David Headley was working on a plot to bomb a Danish newspaper office that had published cartoons depicting the Prophet Mohammed. He later confessed to personally conducting surveillance of the Danish newspaper office. He was also charged with supporting terrorism based on his involvement in the planning and reconnaissance for the 2008 hotel attack in Mumbai. Information obtained through section 215 orders was utilized in tandem with the FBI to establish Headley’s foreign ties and put them in context with U.S. based planning efforts.

  . . .

  Of course, the considerations weighing in favor of the ACLU’s position are far from trivial. . . . Just as the Constitution gives the Executive the duty to protect the nation, citizens’ right to privacy is enshrined in the Bill of Rights.

  Fifteen different FISC judges have found the metadata collection program lawful a total of thirty-five times since May 2006. . . . The Government argues that “Plaintiffs are asking this Court to conclude that the FISC exceeded its authority when it authorized the NSA’s bulk collection of telephony metadata, and that this Court (without the benefit of the classified applications and information available to the FISC) should substitute its judgment for the decisions that the FISC reached [35] times.” . . .

  This Court is bound only by the decisions of the Second Circuit and the Supreme Court. The decisions of other district courts are often persuasive authority. The two declassified FISC decisions authorizing bulk metadata collection do not discuss several of the ACLU’s arguments. They were issued on the basis of ex parte applications by the Government without the benefit of the excellent briefing submitted to this Court by the Government, the ACLU, and amici curiae.

  There is no question that judges operate best in an adversarial system. . . . At its inception, FISC judges were called on to review warrant applications, a familiar role and one well-suited for a judge to protect the rights of an individual in his absence. The FISC’s role has expanded greatly since its creation in 1978.

  As FISA has evolved and Congress has loosened its individual suspicion requirements, the FISC has been tasked with delineating the limits of the Government’s surveillance power, issuing secret decisions without the benefit of the adversarial process. Its ex parte procedures are necessary to retain secrecy but are not ideal for interpreting statutes. This case shows how FISC decisions may affect every American—and perhaps, their interests should have a voice in the FISC.

  CONCLUSION

  The right to be free from searches and seizures is fundame
ntal, but not absolute. . . . Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness. . . . Every day, people voluntarily surrender personal and seemingly-private information to transnational corporations, which exploit that data for profit. Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection.

  There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks. While there have been unintentional violations of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool. And once detected, those violations were self-reported and stopped. The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court.

  No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific. Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the Government’s counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda’s terror network.

  “Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” . . . The success of one helps protect the other. Like the 9/11 Commission observed: The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil. . . . A court’s solemn duty is “to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend [the] existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression.” . . .

  For all of these reasons, the NSA’s bulk telephony metadata collection program is lawful. Accordingly, the Government’s motion to dismiss the complaint is granted and the ACLU’s motion for a preliminary injunction is denied. . . .

  ACLU v. Clapper, U.S. District Court, Southern District of New York, December 27, 2013 (citations in the text and footnotes omitted).

  Source: ACLU v. Clapper, 959 F.Supp.2d 724 (S.D.N.Y. 2013), 742–758.

  29

  United States v. Mohamud: Upholding the

  Legality of Section 702 of FISA

  This decision from a U.S. district court analyzed Section 702 of FISA—a key legal provision at the heart of controversies Snowden caused. Mohamed Mohamud, a U.S. citizen, was convicted in January 2013 for trying to set off a car bomb in Portland. Before sentencing, the U.S. government informed the court that it used information gathered under Section 702 as evidence in the trial. Surveillance under Section 702 against a foreign target had incidentally collected communications Mohamud made. Prosecutors had not disclosed this fact to Mohamud, who then challenged Section 702’s constitutionality by arguing that it violated the separation of powers doctrine and the First and Fourth Amendments. These claims connected to controversies about Section 702’s constitutionality in relation to the incidental collection of Americans’ communications that arose before Snowden began his disclosures. In this case, Judge Garr King ruled that Section 702 is constitutional.

  III. Alternative Motion for Suppression of Evidence and a New Trial Based on the Government’s Introduction of Evidence at Trial and Other Uses of Information Derived from Unlawful Electronic Surveillance

  . . .

  B. Separation of Powers

  As a threshold issue, defendant claims §702 violates the separation of powers doctrine. The Fourth Amendment inserts a neutral and detached magistrate between the subject of the search and the government. Defendant claims §702 procedures reduce the role of the judge to consulting with the Executive Branch with no case or controversy involving an adversary. He contends the FISC does not approve or disapprove proposals for §702 surveillance but instead has a role in designing them. Defendant characterizes the FISC’s role as providing a non judicial advisory opinion, and he argues this violates the fundamental separation of powers function of the [Fourth Amendment’s] Warrant Clause.

  The government disagrees and analogizes the FISC role to numerous judicial functions not directly connected to adversarial proceedings.

  . . .

  The Supreme Court has approved numerous congressional delegations of power which did not upset the balance of power established in the Constitution:

  The nondelegation doctrine is rooted in the principle of separation of powers that underlies our tripartite system of Government. . . . We . . . have recognized . . . that the separation-of-powers principle, and the nondelegation doctrine in particular, do not prevent Congress from obtaining the assistance of its coordinate Branches. . . . So long as Congress “shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” . . .

  . . .

  The statutory scheme Congress specified for §702 surveillance is sufficient to serve as the intelligible principle to which FISC judges must conform in reviewing applications. In particular, the FISC review must insure the surveillance will be conducted in a manner consistent with the Fourth Amendment. . . . The judiciary certainly is well-prepared to fulfill that function. Furthermore, determining if a statute is constitutional is not a prohibited executive or administrative duty which would violate the separation of powers doctrine. . . .

  Indeed, as the government points out, the judiciary also issues search warrants and reviews wiretap applications, both of which are ex parte proceedings. . . . I am not persuaded the review of §702 surveillance applications interferes with the prerogatives of another branch of government beyond requiring the executive branch to conform to the statute. Review of §702 surveillance applications is as central to the mission of the judiciary as the review of search warrants and wiretap applications.

  Moreover, I disagree with defendant’s argument that the FISC judges only provide advisory opinions. The FISC judge reviews the certification, targeting procedures, and minimization procedures included in a §702 surveillance application and either approves the acquisition or orders the government to choose between correcting deficiencies within 30 days and ceasing or not beginning the acquisition. . . . Similarly, electronic communication service providers must follow directives to acquire communications or challenge the directive before the FISC; the opinions are not advisory. . . .

  Although I am not a FISC judge, I disagree with defendant’s argument that the FISC judges assist in designing §702 procedures. FISC opinions now declassified inform us that the court meets with senior officials at the Department of Justice to discuss information provided in the submissions. . . . The technology underlying the surveillance is so extremely complex there is likely little possibility of understanding it without question sessions like this. If the FISC disapproves a government submission, it explains why. The government can then make changes addressing the problems and resubmit the submission. This is the normal way courts operate—justice is not served if the court does not explain its decisions.

  Finally, “[p]rior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights.” . . . Although the FISC is not reviewing a warrant application under §702, the FISC review of §702 surveillance submissions provides prior review by a neutral and detached magistrate. This strengthens, not undermines, Fourth Amendment rights.

  Accordingly, I conclude §702 does not violate th
e separation of powers doctrine.

  C. Constitutionality of Section 702 under the First Amendment

  Defendant contends the breadth and vagueness of §702 surveillance chill Americans’ exercise of their First Amendment rights, causing many to change their habits in using the Internet and telephones. Defendant claims this chill is sufficient to create a First Amendment violation, invalidating §702.

  The government responds that First Amendment interests in a criminal investigation are protected by the Fourth Amendment, and motions to suppress based on alleged First Amendment violations are analyzed under the Fourth Amendment and the exclusionary rule.

  Defendant raises a significant point: “Where the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with scrupulous exactitude.” . . .

  But the appropriate analysis is under the Fourth Amendment, not the First Amendment. . . .

  . . .

  D. Constitutionality of Section 702 under the Fourth Amendment

  . . .

  The parties agree on one thing: The Fourth Amendment does not “apply to activities of the United States directed against aliens in foreign territory.” . . . Section 702 is aimed at acquiring communications of non-U.S. persons outside the United States, and thus [who are] not entitled to Fourth Amendment protection. The dispute arises because communications of U.S. persons located in the United States can be incidentally acquired.

  The government claims the §702 acquisition targeting non-U.S. persons outside the United States is constitutional because: (1) the incidental collection of communications of U.S. persons does not trigger the warrant requirement; (2) surveillance authorized under §702 falls within the foreign intelligence exception to the warrant requirement; and (3) surveillance authorized under §702 is a reasonable search under the Fourth Amendment.