Federal Judge in NY Upholds NSA’s Bulk Collection of Data on Calls

Litigation

Case: ACLU, et al. v. Clapper, et al., 2013 WL 6819708 (S.D.N.Y. December 27, 2013)

The public discord over the reasonable expectation of privacy in the modern data era continues to gain momentum with the issue now infiltrating the federal court system. Developments and emerging trends in the expansion of constitutional rights under the Fourth Amendment can be seen in recent federal court decisions highlighted below.

For instance, the issue concerning the constitutionality of the National Security Agency’s (hereinafter “NSA”) collection of millions of Americans’ telephone records fell directly into the courts in the case of American Civil Liberties Union, et al. v. James R. Clapper, et al., No. 13 Civ. 3994, 2013 WL 6819708 (S.D.N.Y. Dec. 27, 2013), where U.S. District Judge William H. Pauley III in New York ruled on December 27, 2013 that not only is the NSA’s program statutorily legal, but that it does not place an unconstitutional burden on individual First and Fourth Amendment rights (decision available here: ACLUvClapper).

In reaching this historic decision, Judge Pauley reasoned in dicta that the mass collection of phone data “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.” 2013 WL 6819708, at *18. Judge Pauley added: “As the September 11th attacks demonstrate, the cost of missing such a threat can be horrific.” Judge Pauley concluded the program was a necessary extension of steps taken after the September 11th terrorist attacks. Id. at *27. These policies, as permitted by Section 215 of the PATRIOT Act, allow for the collection of “telephony metadata,” so long as the Executive first gets the judicial approval of the FISC and provides semi-annual reports to various congressional committees. Id. at *3; see 50 U.S.C. §§ 1861, 1871.

According to the relevant NSA documents and statutes, the “[t]elephony metadata” collected through the surveillance program as information for each call includes the involved telephone numbers, date, time, duration, and other limited information such as international mobile identifying numbers and calling card numbers. The Judge further explained that information such as conversation content, and typical identifying information such as names, addresses, cell location, or financial information about the individuals involved in the conversation is not collected. 2013 WL 6819708, at *4.

Ultimately, Judge Pauley held that, in accordance with Supreme Court precedent, such a program does not violate the Fourth Amendment freedom from unreasonable search and seizure because individuals have no legitimate expectation of privacy regarding the numbers that they dial due to the fact that the user knowingly provided the information to the phone company. Id. at *22 (referencing Smith v. Maryland, 442 U.S. 735 (1979)). In Smith v. Maryland, the United States Supreme Court held, inter alia, that:

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. Smith, 442 U.S. at 745.

Although the Smith decision is nearly 35 years old and some courts have been keen to claim that telecommunication relationships have changed (see Klayman v. Obama, No. 13-0851, 2013 WL 6571596, at *21 (D.D.C. December 16, 2013)), Judge Pauley held that while that may be the case, the fact of the matter remains that the relationship between the telephone user and the telephone company has not, therefore, the telephone user today has no more legitimate of an expectation of privacy regarding the aforementioned collected information than he or she had in 1979. 2013 WL 6819708, at *22.

Judge Pauley similarly held that the program does not violate the First Amendment right to associate. In deciding as much, the Judge referred to the recent Supreme Court decision of Clapper v. Amnesty International USA. 133 S.Ct. 1138 (2013). According to Judge Pauley, the Amnesty International decision “compels the conclusion that the bulk metadata collection does not burden First Amendment rights substantially.” 2013 WL 6819708, at *24 (citing 133 S.Ct. at 1152). Following Second Circuit precedent, Judge Pauley held that because the NSA metadata collection is not substantial and because “ ‘mere incidental burdens on the right to associate do not violate the first amendment,’ ” the collection of metadata is accordingly, not a violation of the First Amendment. Id. at *24 (quoting Tabbaa v. Chertoff, 509 F.3d 89, at 101 (2nd Cir. 2007).

The ruling by Judge Pauley and the disparate view held by U.S. District Judge Richard Leon in Washington, D.C. in a recent decision centering on similar privacy issues, creates a platform for federal appeals courts to consider the delicate balance between individual rights set out in the Constitution and the need to protect national security.

Indeed, the emergence of immeasurably diverse opinions by the federal bench on the reasonable expectation by Americans of privacy presents a myriad of issues and potential legal challenges, not only as it relates to the NSA’s program, but also the reach of the Fourth Amendment. Both cases now advance to federal appeals courts and a debate some intimate will eventually be settled by the U.S. Supreme Court.

The author acknowledges Michael Barone, Jr., J.D. Candidate 2014, for his contribution to this article.

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