Reports of NSA Metadata Demise are Greatly Exaggerated

On Monday the United States District Court for the District of Columbia released a Memorandum Opinion in a case challenging the constitutionality of the National Security Administration's gathering of American citizens' telephone metadata. Klayman v. Obama, No. 13-0851 (D.D.C. Dec. 16, 2013) The headline in the mainstream media was that a Federal Court had ruled the NSA metadata program unconstitutional. While libertarians and liberals rejoiced in unison, publishing an obituary for the NSA metadata program is entirely premature. The court decision has a few hurdles to clear before the NSA metadata program is in fact declared unconstitutional by either the District of Columbia Circuit Court of Appeals or the Supreme Court. It is by no means a foregone conclusion that this ruling will be upheld on appeal. The government has a plethora of legal grounds on which to appeal the ruling. The most glaring basis for appeal is the judge's disregard for Supreme Court precedent, specifically the ruling in Smith v. Maryland, 442 U.S. 735 (1979) on the issue of whether one has a reasonable expectation of privacy in phone records held by a phone company.

The core concept of "legal precedent" is that previous court decisions interpreting and applying "the law" are binding on lower courts that consider subsequent cases with similar facts. In the Federal system Circuit Court of Appeals rulings are binding precedent (a/k/a "case law") for all cases tried in lower District Courts within that circuit. Supreme Court rulings are binding on all Court of Appeals and District Courts nationwide. Since a great majority of cases do not have the same exact set of facts opposing lawyers essentially debate in writing why legal precedent(s) do or do not apply to the facts of their specific case. The Court ruling in the NSA case before us is an excellent example of how an attorney tries to distinguish the facts of a case from the apparently binding case law.

Acknowledging that the legal analysis must start with Smith v. Maryland, Judge Richard J. Leon dismisses the government's position that under Smith, plaintiffs herein do not have "an expectation of privacy, let alone a reasonable one, in the telephony metadata that telecom companies hold as business records..." (Klayman at p. 44) The judge asserts that advances in communications technology since Smith was decided in 1979 render Smith inapplicable to the constitutionality of the NSA's metadata intelligence operations. The judge is so sure of this legal conclusion that he spends a full ten pages (out of 68) explaining why Smith is not controlling law in this case. Where a judge expends so much effort explaining why the apparently controlling case law is inapplicable to the instant case, the judge recognizes that is this is the weakest part of the decision most likely to be overturned on appeal.

Judge Leon writes that the issue he will ultimately decide is "whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of 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." (Id. P. 56) The judge in this single sentence sums up what he perceives the case is about.

George Orwell is mentioned at least twice in the Judge's ruling. If Orwellian boogiemen are implicated, the government must be in the wrong? Furthermore, the judge ruminates about seismic cultural changes engendered by technological advances since the Supreme Court decided Smith in 1979. These cultural changes somehow lead Americans to "have a greater expectation of privacy and a recognition that society views that expectation as reasonable." (p. 55) Far too many folks do indeed believe the minutia of their lives that they voluntarily broadcast beyond the privacy of their homes are still private once that minutia bounces around the internet, over phone land-lines and off who knows how many cell phone towers. The judge's reasoning seems to be that because many misinformed Americans believe their technologically-driven interactions are somehow private, the legal sphere of reasonable privacy expectations is therefore expanded. The true issue in this case is more narrowly defined as whether American citizens have a reasonable expectation in the fact of their phone call (number from/to, date, length of call) maintained as a business record by a telephone company in the normal course of business. Note that neither the phone company nor the NSA collect the content of those phone calls absent a search warrant.

While the judge reaches the wrong conclusion, the memorandum nevertheless provides an excellent overview of the statutory background and constitutional issues raised by the NSA intelligence; a must-read for anyone interested in the future of American counterterrorist efforts.

Footnote: Plaintiffs herein filed the initial lawsuit on June 6, 2013, the day after the Edward Snowden NSA leaks were published on June 5, 2013, coincidence or really fast "lawyering"?

Grizzly Joe blogs at Occupy Bawl Street.