In a groundbreaking and precedent-setting decision, United States District Judge Richard Leon on December 16 found that the NSA’s previously secret program to capture the “metadata” in every single telephone call made by every single U.S. person, then to store and analyze that data presumptively violated the provisions of the Fourth Amendment and constituted an “unreasonable search and seizure.”

In doing so, the Judge, appointed by George W. Bush, swept away more than 34 years of precedent and dismissed the fact that the program was authorized and approved by Congress, and expressly approved by a federal court which issued a warrant authorizing it.

Judge Leon similarly departed from the Supreme Court precedent holding that a person could not challenge a surveillance program (in that case, a warrantless program to capture the contents of surveillance) unless they could show that they had personally been subjected to a wiretap.  The Court found that the NSA had deployed “almost-Orwellian technology” that “enables the Government to store and analyze the phone metadata of every telephone user” and this was “unlike anything that could have been conceived in 1979.”

The Judge also noted that “people in 2013 have an entirely different relationship with phones than they did thirty-four years ago.”   Although the decision has no immediate practical effect (recognizing its impact on national security, the Court stayed the impact of the decision so the Government could appeal) in the long term it puts a broad fence restraining future government action.

The Apparent Precedent

In 1979, in a landmark case called Smith v. Maryland, the U.S. Supreme Court had to decide whether, during the course of investigating a person who was making threatening and harassing phone calls made by a robber to the victim of a robbery, the police could install a “pen register” – a device to see what calls the suspect was making.  The “pen register” was installed at the telephone company’s central switch line, and the police did not get a warrant to find out what the phone company already knew – that the defendant was the source of the unwanted phone calls.

The Supreme Court in 1979 found the actions of the police to be “reasonable” under the circumstances – the police were investigating a single individual, the suspect and his car matched the description given by the robbery victim, they saw the defendant drive slowly past the victim’s house as if shriveling her, and in the phone calls the suspect not only was obscene and threatening, but also stated that he was the robber.

The police put the pen register on the phone one day, and the next day the suspect was caught calling the victim from his home.  The Supreme Court found the actions of the police “reasonable” even without a Court order, because, they found that the suspect had no “reasonable expectation of privacy in the calls he made” and that he had “voluntarily shared” the fact that he made these calls with the phone company.

Everyone knows, the court concluded that the phone company keeps a record of calls (after all, it’s on your bill).  How can the robber making obscene calls to his victim possibly expect that the fact that he made the call to her be considered “private?”

The NSA Domestic Metadata Program

From this auspicious seed came the NSA domestic metadata program.  If the records of one call from a robber to a victim is not “private” then, the NSA surmised, the records of ALL calls between all people are not “private.”  People should not consider this “non-content” information to be private, because the information “belongs” to the phone company.

By “voluntarily” sharing the data with the phone company (or, in the case of ISP’s search history or metadata), you have abandoned your privacy rights, just like you have when you toss out the trash.  Besides, this kind of information – what calls you make – is not particularly sensitive or private.  It doesn’t really reveal much about you – unless you are making threatening and obscene calls to a robbery victim. The NSA and the Department of Justice (DOJ) relied on the holding in Smith v. Maryland to develop a secret surveillance program whereby the NSA would get an order from the FISA court (Foreign Intelligence Surveillance Court) to each of the phone companies every day requiring them to do a “data dump” on the calls of every person.

The NSA relied on a bit of sophistry here.  All they were doing was moving the data from the phone company to the NSA.  It’s not the citizen’s data; it’s that of the phone company.  Just as the records of what you bought at Toys R Us is not your record, or what you ate at Chuck-E-Cheese (Pizza, maybe?) is a record of the restaurant chain, they can do with it as they like.

When your phone logs are moved from ATT to NSA – one three letter acronym to another – this does not impact your privacy whatsoever.

Similarly, the government opined, if the government lawfully obtains documents or records, it doesn’t need a separate warrant to look at them.  If they get them legally, they are theirs to use as they wish.

Now take these two concepts together.  NSA can force ATT, Sprint, Verizon, T-Mobile and others to pony up the records because the transfer doesn’t implicate privacy, and can examine these records afterwards because they have obtained them lawfully.

The Aim of the Program

The purpose of the NSA program was multifold.  First, if they got a phone number of a suspected terrorist, they could put in into their brand new database and find out who the terrorist was calling.  They could also see who that person was calling to learn of the network of people the terrorist belonged to.

But the NSA could have done that without taking possession of all of the records.  They needed to “own” all the records for several reasons.  First, they needed to conduct these searches in private – the phone company couldn’t know what they were looking for.  Second, the phone company might just delete some of the records after a few years or decades.  Third, the phone companies’ computers might not be fast enough or sophisticated enough to call up the records that the NSA wanted.  Finally, and most importantly, the NSA wanted to do a LOT MORE than just pull up terrorists’ phone calls.  They wanted to cross-reference everyone’s calls.  Figure out what people do normally, and what is “abnormal.”  They wanted to use the records to do “target selection” – to figure out who might be doing something strange and target them.

Too many calls to Afghanistan? Bang! You’re a target.  Make a call to a mosque and then a gun shop? A target.  Call someone whose father’s brother’s nephew’s cousin’s former roommate is a terrorist, and that makes you a target.  So the data can be mined not just to see who a suspect (for whom there is probable cause) has called, but also to develop patterns for everyone’s calls.

The Scope of the Program

And that was part of what disturbed the Judge.

The scope and extent of the intrusion by the NSA was completely different from the intrusion into the robber’s privacy in Smith.  In Smith, there was a narrow search for a day or two of a single suspect to see if he was the source of a specific call to a specific number.  In the NSA’s case, they collected every call ever made by everyone.

In Smith, all the government sought to determine is whether a specific call was made.  In the NSA’s case, they could learn the habits, relationships, networks, friends, relatives, associations, religious beliefs and affiliations, medical diagnosis and treatment, of just about everyone.   They could know when people left the house, when they got on their cell phones, when they got to work, and when they went to lunch.

The court ruled that both the massive collection, the analysis and the examination of the files were unreasonable.

What the Government Argued

What was interesting is what the government argued.  Not just that it was necessary for national security or authorized by the Court.  The government argued that the plaintiffs had to show that the NSA was specifically collecting THEIR data from THEIR provider or they didn’t have a case.  The NSA also argued that the plaintiffs had to show that the NSA specifically looked at their calling patterns and telephone calls, or they couldn’t show damages.  The government argued on the one hand that they needed EVERYONE’s records for the program to work, but also that the plaintiff couldn’t sue because they hadn’t proven that the government had THEIR records.  The court said, “the Government asks me to find that plaintiff’s lack of standing based upon the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly service its putative function.  Candor of this type defied common sense and does not exactly inspire confidence!”  The could liken the Government’s description as like “omitting John, Paul and George from a historical analysis of the Beatles.”  He said, “A Ringo-only database doesn’t make any sense, and I cannot believe the Government would create, maintain, and so ardently defend such a system.”

Put simply, while metadata is the same, the world of 2013 is different from the world of 1979.  The amount of information that can be gleaned from metadata, not to mention the amount of metadata that exists is a quantum leap over what existed even a decade ago.

While the government argued it was in the public interest to combat terrorism, the court replied, “it is always in the public interest to prevent the violation of a party’s constitutional rights.”   The judge noted, “I am not convinced at this point in the litigation that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigation, and so I am certainly not convinced that the removal of two individuals from the database [the plaintiffs] will “degrade” the program in any meaningful sense.”

What’s Next?

So what happens next?  The court has stayed its order, and an appeal is not only likely, it is inevitable.  Ultimately, the Supreme Court may have to weigh in and decide the case.  On June 20, 1979, when the Supreme Court decided the Smith case, the number one song in the country was Donna Sommer’s “Hot Stuff,” a new home cost about $72 thousand, and a gallon of gas cost 85 cents.  A lot changes in a few decades.  The law just did as well.

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