Tuesday, December 17, 2013

What is Privacy? Federal Judge Rules on NSA Program

     Yesterday, a District of Columbia federal district court judge issued a much anticipated and controversial ruling on the NSA's bulk metadata program used to collect information from cell phones in Klayman v. Obama.  The two most important aspects of his decision are 1) granting standing to the plaintiffs and; 2) ruling the program is unconstitutional under the Fourth Amendment.
     First, Judge Richard Leon granted standing to sue to the plaintiffs in the second of the two challenges to the NSA's program (in the first case challenging the program's statutory authority of the Foreign Intelligence Surveillance Act under an Administrative Procedure Act claim, Judge Leon determined he did not have jurisdiction to rule on due to statutory and other administrative procedures).  In June of 2013, the Supreme Court refused to grant standing to plaintiffs in Clapper v. Amnesty International (a suit also challenging the NSA's programs) on grounds they could not sufficiently prove their injury.  In Klayman, however, Judge Leon stated, "…whereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all, plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention." This, due to more leaked Snowden documents by the media.  In legal terms, the Clapper case was not "ripe" yet.
     The reason this is so important is because it may open the floodgates to further challenges to the NSA's controversial counterterrorism programs.  When Amnesty International originally brought a suit, there was not enough information about the programs available to the public yet; most of the information was still classified.  Now that more and more leaked documents are hitting the media, Americans have a better idea of how the NSA conducts its programs and can point to specific breaches of their privacy.
     This brings me to the next issue of privacy.  The most intriguing portion of Judge Leon's opinion is how he makes his case for Fourth Amendment violation by comparing it to and refuting a previous Supreme Court ruling in Smith v. Maryland.  In Smith, which was decided in 1978, the Supreme Court ruled that installing a pen register to surveil a home did not constitute a "search" under the Fourth Amendment.  According to Judge Leon, "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."  He continued to say, "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... 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 lives."   
     For Judge Leon, the issue is not about the collection of data because in 1979 the same data was being collected, but rather the increase in technology, which has allowed that same data to provide a plethora of information not conceived in 1979.  But Judge Leon makes a valid point in that modern cell phones are in a sense, and extension of our identity.  They are personalized and can tell one's story through GPS trackers disclosing one's location, the types of data they search on the internet and, the types of text messages and phone calls made.
     So, can the NSA's programs be considered a "search" under the Fourth Amendment?  The guidelines Judge Leon used to answer this question are as follows.  First, "A Fourth Amendment 'search' occurs either when 'the Government obtains information by physically intruding on a constitutionally protected area,' or when 'the government violates a subjective expectation of privacy that society recognizes as reasonable.'"  Most citizens, and Judge Leon, believe that cell phone data and calls have an expectation of privacy.  Second, "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.'"
     What makes the NSA's bulk data program an unreasonable search, according to Judge Leon, is that metadata is being collected on individuals who are not suspected of any wrongdoing.  While I refuse to subscribe to the idea that Americans must surrender liberties for security, I believe the government's interests outweigh the rights to "privacy."  The NSA believes their programs allow them to analyze data and react quicker to potential threats.  However, Judge Leon stated in his decision, "the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack."  Many believe that the collection of mass data is metaphysical in nature and not necessary or essential for thwarting terrorist attacks.  There is no question that the NSA's collection of data aids officials and allows them to build better cases on known terrorist actors. 
     The NSA has maintained they are not interested in content.  In other words, they do not listen in on phone calls or read individual emails.  Through tracking phone numbers of known terrorist actors, they can build a network of terrorist contacts to establish a clearer picture to potential intentions of belligerents without listening to calls.  I do not believe it is an unreasonable search to gather phone calls since the government has a legitimate and reasonable interest (there is a legitimate privacy claim to the government listening to unwarranted calls however).  In one sense, Americans surrender some level of privacy when they enter into the "commerce" of cell phone technology.  Could the GPS tracking devices in phones be considered a "search" under the Fourth Amendment?  The real problem is the fact that the NSA is operating under one blanket court order, which should be amended.  The NSA should have to obtain an additional warrant in line with the Constitution's Fourth Amendment to further examine records if they believe they have established a legitimate terrorist network through their surveillance. 
     Furthermore, the Constitution does not explicitly outline a right to privacy, which Justice William Rehnquist famously dissented in Roe v. WadeJudge Leon stated, "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."  Along the same lines as Madison, Thomas Jefferson's (the author of the Declaration of Independence) key objection to British rule was their usurpation of power, which many can equate to today's NSA programs.
     As Judge Leon anticipates, the government will appeal his ruling, which is why he is, for now, allowing the NSA to continue their program but issued an injunction against the NSA for data collected on the plaintiffs.  It is difficult to foresee what will happen in the appeal process.  If the circuit court affirms the lower court's ruling, it would be almost certain the Supreme Court would have to take this case given the constitutional implications.  I am interested to see how the conservative bloc on the Supreme Court will rule.  Chief Justice Roberts has warned of the dangers of "big government" in the past while fellow conservative Justice Scalia has ruled to maintain the status quo of the administrative state.  On the other hand, Justice Scalia's and Thomas's originalist principles of constitutional interpretation certainly contradict the district court's ruling in many ways.  
     I have always been a strong advocate for judicial review no matter how I felt about the ruling but in this case, I disagree with the basis of Judge Leon's argument and ultimately, his ruling. 

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